Cook v. Bordi

• Decision Date: 13 January 1960
• Citation: 177 Cal.App.2d 112,1 Cal.Rptr. 886
• Court: California Court of Appeals Court of Appeals
• Parties: Mary E. COOK, Plaintiff, Appellant and Respondent, v. Jean S. BORDI, Defendant, Respondent and Appellant. Civ. 18412.

Page 886

1 Cal.Rptr. 886

177 Cal.App.2d 112

Mary E. COOK, Plaintiff, Appellant and Respondent, v. Jean S. BORDI, Defendant, Respondent and Appellant.

Civ. 18412.

District Court of Appeal, First District, Division 2, California.

Jan. 13, 1960.

Wallace S. Myers, Robert P. Praetzel, San Anselmo, for appellant.

Thomas, Buresh & Smith, San Rafael, for respondent.

KAUFMAN, Presiding Justice.

Plaintiff, Mary E. Cook, a pedestrain, was hit by or ran into an automobile driven by the defendant, Jean S. Bordi. A jury trial resulted in a verdict in favor of the defendant. Plaintiff moved for a new trial and her motion was granted. Defendant appealed from the order granting the motion for a new trial. Thereafter, plaintiff appealed from the judgment, pursuant to Rule 3(a) of the Rules on Appeal.

The facts are not in dispute. The accident occurred on December 5, 1955, about 5:21 p. m. at the intersection of Sir Francis Drake Boulevard and the Sunny Hills Orphanage driveway in San Anselmo. At this location, Sir Francis Drake Boulevard runs in a general east-west direction. A sidewalk about three feet wide runs along the northern border of the boulevard. This sidewalk is intersected at right angles by the north-south driveway of the orphanage. There is a stop sign at the end of the driveway on the northwest corner of the intersection. At the time of the accident, traffic was heavy on the boulevard and lights of vehicles were shining in both directions. It was dark and raining hard.

The plaintiff, wearing a silvery-grey raincoat, was walking west along the Boulevard. She was walking in the center of the sidewalk and had passed the center of the intersection when she was struck. She did not see or hear the defendant's car before it struck her. The defendant who worked at Sunny Hills was on her way to her home in Fairfax, driving south on the driveway. She stopped for about ten seconds at the stop sign, before making a right turn onto the boulevard; and then she started her car in low gear. She heard someone cry out and stopped. She had not seen the plaintiff before the accident. After the accident, the front wheels of the defendant's car were on the sidewalk.

The first issue in this appeal is whether the court properly granted plaintiff's motion for a new trial. The motion was made on March 28, 1958 on the grounds of insufficiency of the evidence; that the verdict was against the law in that the negligence of the defendant was the sole and proximate cause of the injury; and error in law occurring at the trial and excepted to by the plaintiff.

At the hearing on the motion, on April 17, 1958 plaintiff argued the insufficiency of the evidence and that the verdict was not sustainable as a matter of law. The motion was granted on May 8, 1958 but the grounds were not stated. The notice of appeal was filed on June 5, 1959. On May 23, 1958, an amended order was filed stating the motion was granted on all the grounds specified. There was no stipulation for a correction of the minutes. Hoffman v. Johnson, 143 Cal.App.2d 767, 299 P.2d 913.

The first question is whether insufficiency of the evidence is a ground to be considered by this court. Section 657 of the Code of Civil Procedure provides, as far as relevant:

'When a new trial is granted, on all or part of the issue, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. The court may direct a party to prepare the order. (Enacted 1872. As amended Stats.1919, c. 100, p. 141, § 1; Stats.1929, c. 479, p. 841, § 2; Stats.1939, c. 713, p. 2234, § 1.) [Emphasis supplied.]

As the amended order was not filed within ten days after the motion was granted, this court is precluded from reviewing the question of the sufficiency of the evidence. Kralyevich v. Magrini, 172 Cal.App.2d 784, 342 P.2d 903; Bray v. Rosen, 167 Cal.App.2d 680, 335 P.2d 137; In re Estate of Browne, 159 Cal.App.2d 99, 323 P.2d 827; Townsend v Gonzalez, 150 Cal.App.2d 241, 309 P.2d 878; Conjorsky v. Murray, 135 Cal.App.2d 478, P.2d 505; Roth v. Marston, 110 Cal.App.2d 249, 242 P.2d 375.

The next question therefore is whether or not errors of law were committed during the course of the trial upon which the court could properly grant a motion for a new trial. The applicable rules of law were succinctly stated in Barth v. San Juan Development Co., 168 Cal.App.2d 760, at page 762, 336 P.2d 203, at page 205 (quoting from Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, at page 159, 323 P.2d 391, at page 394) as follows:

"The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears, and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 733-734, 306 P.2d 432. In the Brandelius case it was stated that the granting of a new trial could be reversed 'only if * * * the questioned instruction was absolutely accurate and under no reasonable interpretation could possibly have misled or confused the jury.' 47 Cal.2d at pae 745, 306 P.2d at page 442."

Therefore, if the instructions in the instant case were in any sense misleading or confusing, the trial court's granting of a new trial must...