Aguirre v. Reno

[286]Opinion

ROTH, P. J. In a jury trial, plaintiff James Aguirre obtained a verdict against defendant William E. Reno for personal injuries sustained when defendant’s 1965 Dodge struck plaintiff’s 1955 black Chevrolet on the Antelope Valley Freeway between 9:30 and 10 p.m. the evening of February 9, 1966.

After both sides had rested, but before the case went to the jury, the defendant (respondent herein) moved for a directed verdict. That motion was denied. Following a verdict for plaintiff (appellant herein) respondent moved for judgment notwithstanding the verdict and for a new trial. Both motions were granted and judgment in favor of the respondent was entered. The motion for a new trial was granted only “In the event . . . [the order granting judgment notwithstanding the verdict] is hereafter reversed, on appeal.”

Appellant argues that since a motion for a directed verdict had been properly denied by the trial court, it had no statutory authority to grant the motion for a judgment notwithstanding the verdict. Appellant’s appeal is confined to the motion N.O.V. There is no appeal from the motion granting a new trial. The latter order is, of course, appealable. (Code Civ. Proc., § 904.1, subd. (d).) An order from which no appeal is taken will not be reversed. (Code Civ. Proc., § 906.)

It is undisputed that sometime between 9:30 and 10 in the evening of February 3, 1966, the right front portion of respondent’s Dodge struck the left rear portion of appellant’s Chevrolet in the right-hand lane of the Antelope Valley Freeway. Appellant had no recollection of the accident; the last thing he remembered was driving down the freeway at 73 miles an hour and then slowing down because it seemed that one of his mufflers was coming loose.

Respondent testified that the headlights, of his Dodge picked up a car that appeared to be abandoned at a distance in excess of 30 feet, and that he attempted to swerve to the left in the next 5 to 10 seconds before the impact.

The two theories upon which appellant predicated his action were that his vehicle was standing momentarily disabled on the freeway and that respondent had the last clear chance to avoid the accident, or in the alternative, that his vehicle, was traveling at a slower speed than respondents and was negligently rear-ended. Appellant’s argument on appeal is confined to the latter theory.