Martin v. Smith

• Decision Date: 30 April 1951
• Citation: 230 P.2d 679,103 Cal.App.2d 894
• Parties: MARTIN v. SMITH et al. RICHARDSON et al. v. MARTIN et al. Civ. 7908.
• Court: California Court of Appeals Court of Appeals

Page 679

230 P.2d 679

103 Cal.App.2d 894

MARTIN v. SMITH et al.

RICHARDSON et al. v. MARTIN et al.

Civ. 7908.

District Court of Appeal, Third District, California.

April 30, 1951.

Appelbaum & Mitchell, Oakland, John JeWett Earle, Oakland, for appellants.

Sinclair M. Dobbins, Walter W. Weir, Jr., Vacaville, Charles V. Barfield, San Francisco, Burt D. Goodman, Fairfield, for respondents.

ADAMS, Presiding Justice.

Plaintiff brought this action to recover damages for injuries which he sustained in a collision between an automobile belonging to Walter P. Jaarsma and driven by Charles Glen Smith, and a truck belonging to Manuel Souza, driven by Raymond Riley Richardson. Martin was a passenger in the Jaarsma car in which Jaarsma and another person were also riding. He sued Smith and Jaarsma, as well as Souza and Richardson. A jury returned a verdict for plaintiff against Jaarsma and Smith, but denied any recovery against the owner and driver of the truck. Plaintiff Martin and defendants Jaarsma and Smith all moved for new trials, which were granted. This appeal is taken by Souza and Richardson, it being their contention that no negligence on their part was shown, and that the verdict of the jury in their favor should not have been disturbed.

The facts are conceded to be substantially as follows: About noon on April 2, 1948, Richardson was driving defendant Souza's yellow milk truck and trailer in a westerly direction on a two-lane highway, approximately seven miles west of Rio Vista, Solano County. The road traversed a hilly region which consisted of a succession of rolling elevations and depressions. Rain had fallen during the morning, the highway was damp, and the adjacent ground was muddy and soft. As Richardson surmounted the crest of a slight hill he heard a noise like an explosion apparently emanating from under his truck. As there was only a two foot shoulder which dropped off into a ditch four or five feet deep he did not turn off the roadway at that point to check the vehicle, but proceeded slowly toward a wider area near the foot of the slope where an intersection appeared to afford an opportunity to stop outside of the traffic lane. However, before he reached it the brakes on the trailer locked and the entire equipment became disabled and immovable in the right hand traffic lane at a distance below the crest of the hill variously stated to be 150 to 300 feet. Being unable to move the truck he set out three warning devices which consisted to metal frames four inches wide and six to eight inches high, with two three or four inch reflectors on each side. One was placed at the crest of the hill, another about 60 feet behind the stalled vehicle, and the third about 25 feet in front of it, all in the right-hand driving lane near the white line. He also blocked the wheels of the truck and trailer. He then flagged a passing car and returned to Rio Vista for assistance, leaving the truck unattended for about an hour.

The car in which plaintiff was riding was also proceeding west toward Fairfield, along the same highway. As it ascended the east slope of the hill on the other side of which the truck was standing, plaintiff Martin was reading a book, there apparently being enough light for this purpose despite the slight rain. Martin testified that the Jaarsma car was traveling about 50 miles per hour, while Smith, the driver estimated his speed at 40 to 45 miles per hour. The three occupants of the car testified that they saw the truck as they reached the crest of the hill, though Smith, the driver, said that when he came over the crest of the hill he did not realize that the truck was stopped; also that he did not notice an eastbound car in the other lane and swung out to his left, intending to pass the truck; that he then observed the oncoming car, swerved back to his own side of the road and slammed on his brakes about 50 feet from the truck; that after the oncoming car had passed, he again tried to pass to the left of the stalled truck and trailer and as he pulled to his left the rear end of his car 'slipped around' and hit the stalled equipment, throwing Martin to the ground and causing him severe injury.

Appellants assert that there was error in granting the new trial as to them; that they made a motion for a nonsuit at the conclusion of the plaintiff's case during which the facts set forth were educed; that the nonsuit was denied by the trial court, with the comment that Richardson should not have left his vehicle unattended but should have taken a position near the brow of the hill to warn oncoming traffic; and that it was for the jury to determine whether Richardson was or was not negligent. Yet even after the jury had absolved appellants from liability, the trial court nevertheless set aside the decision of that body which he himself had said was the proper tribunal to resolve the issue.

Appellants contend that there was no negligence on Richardson's part; that he did all that was required of him under the circumstances and that it was not negligence for him to fail to remain near the place of the accident and warn oncoming traffic; that in fact he exercised greater precaution than required by law when he set out the reflectors, since the Vehicle Code contains no such requirement for warning of a disabled car during daylight hours. They also state that the disabled truck was not the proximate cause of the accident, but that the negligence of Smith in driving too fast and in failing to observe the warning reflectors and the obvious truck stalled in the middle of the road was the proximate cause; and they also assert that it cannot be said that the failure of Richardson to remain in person to warn oncoming vehicles was the proximate cause of the accident.

The rule is well established that an appellate court will not reverse an order of a trial court granting or refusing a new trial unless it can be said as matter of law that there was no substantial evidence to support a judgment for the moving party, or that there was a clear or manifest abuse of discretion on the part of the trial court in granting the new trial. This subject has recently been dealt with extensively in two opinions by this court, to wit: Yost v. Johnson, 91 Cal.App.2d 849, 206 P.2d 13, and Rembold v. Goodwin, 93 Cal.App.2d 605, 209 P.2d 402. However, if and when it appears that there is no substantial evidence to support a judgment in favor of a party whose motion for new trial has been granted, an appellate court may and should reverse the order of the trial court granting a new trial. The rule as stated in Mazzotta v. Los Angeles Ry. Corp., 25 Cal.2d 165, 168, 153 P.2d 338, is that if the evidence as a whole would be insufficient as a matter of law to support a verdict in favor of the moving party, the order appealed from should be reversed. Also see Roscoe Moss Co. v. Jenkins, 55 Cal.App.2d 369, 130 P.2d 477. In Seth v. Lew Hing, 125 Cal.App. 729, 732, 14 P.2d 537, 538, 15 P.2d 190, in which an order granting a new trial was reversed and a hearing in the Supreme Court denied, the rule was thus stated: 'Preliminarily we should consider the function of this court on an appeal from an order granting a new trial. On this point the authorities are in accord with the statement found in Moss v. Stubbs, 111 Cal.Appp. 359, 363, 295 P. 572, 573, 296 P. 86, that: 'It is equally well settled that, where there is no substantial conflict in the testimony on material issues, and the evidence as a whole would be insufficient as a matter of law to support a verdict in favor of the moving party, an order granting a new trial cannot be sustained.' [Numerous cases cited.]' In Henderson v. Braden, 35 Cal.App.2d 88, 91, 94 P.2d 625, 626, a verdict was returned for defendant in a collision case, the court granted a new trial, and this court reversed that order, saying: 'It is well settled that where the evidence as a whole would be insufficient as a matter of law to support a verdict in favor of the moving party, an order granting a motion for a new trial cannot be sustained. Moss v. Stubbs, 111 Cal.App. 359-363, 295 P. 572, 296 P. 86, where numerous cases are cited.' In De La Falaise v. Gaumont-British Picture Corp., 39 Cal.App.2d 461, 103 P.2d 447, an action for breach of contract in which the court granted a new trial, the order was reversed; and after restating the above rule many cases were cited in support thereof. In Schlemmer v. Stokes, 47 Cal.App.2d 164, 117 P.2d 396, plaintiff, a minor, sued to recover...