Mehling v. Schield

• Decision Date: 31 July 1967
• Citation: Mehling v. Schield, 253 Cal.App.2d 55, 61 Cal.Rptr. 159 (Cal. App. 1967)
• Court: California Court of Appeals
• Parties: Anton George MEHLING, Individually and an Administrator of the Estate of Martha Mehling, Deceased, Plaintiff, Respondent, and Cross-Appellant, v. Ward Daniel SCHIELD, Defendant, Appellant, and Cross-Respondent. Civ. 11477.

Page 159

61 Cal.Rptr. 159

253 Cal.App.2d 55

Anton George MEHLING, Individually and an Administrator of the Estate of Martha Mehling, Deceased, Plaintiff, Respondent, and Cross-Appellant, v. Ward Daniel SCHIELD, Defendant, Appellant, and Cross-Respondent.

Civ. 11477.

Court of Appeal, Third District, California.

July 31, 1967.

Rehearing Denied Without Opinion Aug. 29, 1967.

Hearing Denied Sept. 27, 1967.

Downey, Brand, Seymour & Rohwer, Sacramento, for plaintiffs-respondents-appellants.

John J. Hannegan, Sacramento, for defendant-appellant-respondent.

REGAN, Associate Justice.

Defendant appeals from an order granting a motion for new trial in an action for the death of plaintiff's wife following an automobile-pedestrian accident arising when defendant's automobile struck the deceased while she was endeavoring to cross a Sacramento city street.

The jury returned a verdict for the defendant. The trial court granted plaintiff's motion for a new trial and defendant appealed. (Code Civ.Proc. § 963.) Plaintiff has cross-appealed (see 3 Witkin, Cal. Procedure, Attack on Judgment in Trial Court, § 44(c), p. 2096) and contends that: (1) the evidence establishes defendant's negligence as a matter of law; (2) there was no evidence to support a finding that the injuries sustained by plaintiff's wife and her subsequent death were not proximately caused by the negligence of defendant; and (3) there was no evidence to support a finding of contributory negligence on the part of the deceased.

The facts, insofar as we are here concerned, are as follows: Plaintiff Anton George Mehling and his wife, Martha, were walking to their daughter's home on the evening of December 24, 1964. At approximately 7:30 p.m. the couple attempted to cross 21st Avenue while in or near a marked crosswalk. The crosswalk was not controlled by traffic signals, but there was a dedestrian crossing warning signal painted on the pavement to alert oncoming traffic. The speed limit in this area was 25 miles per hour. The nearest overhead street light was estimated to be approximately 100 feet away from the crosswalk.

When the accident occurred the weather was clear, though it was dark outside, and the pavement was dry. The Mehlings were wearing dark clothing. Mr. Mehling testified that he and his wife first stopped at the corner to allow several cars to clear the intersection. He looked again and saw approaching car lights, but felt that the lights indicated the car was far enough away for a safe crossing. They then proceeded with caution to cross the street. While crossing, Mr. Mehling continued to focus his attention on the oncoming car lights. He testified that when they were about two-thirds to three-quarters of the way across the street the lights appeared so close he and his wife increased their pace in order to get to the sidewalk. When Mr. Mehling reached the edge of the street, he jumped toward the grass to avoid a collision, and at the same time yelled to his wife to jump. Mrs. Mehling had one foot on the curb and the other foot in the gutter when defendant's automobile struck her. Mrs. Mehling was hospitalized continuously until her death on January 15, 1965.

Defendant Ward Schield was driving his automobile east on 21st Avenue when it collided with Mrs. Mehling. Although defendant was familiar with the intersection, he did not recall noting the 'Slow-Ped-X-ing' markings in the street. Schield admitted that oncoming car lights were bothering him as he approached the intersection. He estimated his speed to be between 25 to 30 miles per hour. Immediately upon seeing the pedestrians, he hit his brakes and went into a skid. The skid marks measured 65 feet in length. When defendant's car came to rest, it was part in and part out of the crosswalk.

In his memorandum of opinion and order granting new trial, the trial judge stated as follows:

'This is an action for damages for the alleged negligence of defendant alleged to have resulted in the death of plaintiff's intestate. Upon the trial the issues were negligence, contributory negligence, proximate cause and damages.

'The verdict of the jury was in favor of the defendant, and thus it must be assumed the jury found either (1) that the defendant was not guilty of negligence which proximately caused the death of plaintiff's intestate, or (2) that plaintiff's intestate was guilty of contributory negligence which proximately contributed to her death.

'After a full consideration of the arguments of counsel the Court has concluded that there was insufficient evidence As a matter of law insofar as the issue of contributory negligence was concerned (See Novak v. Dewar, 55 Cal.2d 749, 13 Cal.Rptr. 101, 361 P.2d 709.) and that the Court erred in submitting this issue to the jury. (Sec. 657, Sub. 7, C.C.P.)

'Insofar as it may be urged in support of the verdict that the jury impliedly found that defendant was not guilty of negligence which proximately caused the death of plaintiff's intestate, the Court concludes that such a finding is contrary to the weight of the evidence and there is insufficient evidence to support such an implied finding.

'IT IS THEREFORE ORDERED that plaintiff's motion for a new trial be and the same is hereby GRANTED.'

As can be seen from the memorandum opinion, the trial judge granted a new trial in this case for two reasons. First of all, the judge decided that he had erred in submitting the issue of contributory negligence to the jury. Secondly, the judge found that there was insufficient evidence to support a finding that defendant was not guilty of negligence which proximately caused the death of Mrs. Mehling. Both of these causes are grounds for the granting of a new trial. (Code Civ.Proc. § 657.)

Where there is an appeal from an order granting a new trial, all presumptions are in favor of the order. (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 733, 306 P.2d 432.) The rule has been stated 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.' (Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 159, 323 P.2d 391, 394.)

In passing upon a motion for a new trial, the trial judge is vested with a large amount of discretion. This is so for '(t)he judge presiding at a jury trial not only has seen and heard the witnesses, as has the jury, but he comes to the task of weighing the evidence on a motion for a new trial with a specialized experience in separating the wheat of evidence from its chaff.' (Perry v. Fowler, 102 Cal.App.2d 808, 811, 229 P.2d 46, 48.)

Thus, the appellate court's review is limited to the inquiry whether there was any support for the trial judge's ruling, and that ruling will not be reversed unless it is affirmatively shown or manifestly appears that he had abused the sound discretion confided to him. (Perry v. Fowler, supra, 102 Cal.App.2d at pp. 811--812, 229 P.2d 46; State ex rel. Dept. of Water Resources v. Natomas Co., 239 Cal.App.2d 547, 566, 49 Cal.Rptr. 64; 3 Witkin, Cal. Procedure, Attack on Judgment in Trial Court, § 10(d), p. 2054).

'* * * It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.' (Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689, 690; Alhambra Cons. Mines, Inc. v. Alhambra Shumway Mines, Inc., 239 Cal.App.2d 590, 597, 49 Cal.Rptr. 38.)

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