Michelli v. Kern
| Decision Date | 30 August 1967 |
| Citation | 61 Cal.Rptr. 888,253 Cal.App.2d 1047 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Joseph M. MICHELLI, Plaintiff and Respondent, v. Frank H. KERN, Defendant and Appellant. Civ. 31045. |
Grogan & Hogan, Los Angeles, for appellant.
Rainer & Moriarity and I. Warren Rainer, North Hollywood, for respondent.
Frank H. Kern appeals from an order granting Joseph M. Michelli a new trial in his action for personal injuries sustained in an automobile collision. Following a jury verdict and entry of judgment in favor of Kern, the trial court granted respondent's motion for a new trial on the grounds of insufficiency of the evidence to justify the verdict and that the verdict was against the law. In so doing the court commented:
'The reasons therefor are that the evidence established that the proximate cause of the collision in this case was the conduct on the part of the defendant in suddenly moving from a parked position at the curb and running into plaintiff's automobile which was in the roadway and in plain sight of the defendant, after plaintiff had properly and legally turned to the left; that the verdict of the jury was therefore contrary to the evidence and contrary to the instructions of the court as to the law applicable to the facts and circumstances in this case.
'After having weighed the evidence and the inferences therefrom, the court comes to the decision that the jury clearly should have reached a contrary verdict.'
Appellant contends the trial court abused its discretion in granting the motion for new trial and that, in fact, Michelli's contributory negligence was established as a matter of law. These contentions are without merit.
It is undisputed that Kern, driving a 1962 Buick, collided with Michelli's 1960 Ford in front of the union hall on Colorado Boulevard in Glendale on the afternoon of December 3, 1962. Michelli, acting in the course of his employment as a union representative, was escorting a new employee, Thomas Bibbs, to show him the routine of the work. He proceeded east on Colorado Boulevard under moderately heavy traffic conditions to a point where he wished to make a left turn into the alleyway on which his office was located. He waited a few minutes for west-bound traffic to clear, signalling the while with both arm and light indicators, then made his turn when traffic was clear. He knew that cars used the parking strip beside west-bound traffic lanes and was accustomed to seeing the parking spaces there provided full of parked automobiles. He was, however, unprepared, as he turned across west-bound traffic lanes, for one of these cars to pull out toward him.
When Michelli was halfway across the second west-bound traffic lane he heard his passenger exclaim, 'Look out!' and immediately felt the impact of a collision. He saw the hood of his own car begin to bend and stepped on his brake, but he heard a motor racing and felt his car being impelled backwards. He then turned his motor off, put his hand out the window to wave at the other driver, Kern, and shouted to him a number of times, 'Take your foot off the gas!' The other driver finally removed his foot from the gas, but shortly thereafter accelerated again, thus causing a second impact. Michelli's car was pushed backward three of four feet leaving skid marks because the brakes were engaged. Both Michelli and Bibbs testified that the Michelli car proceeded into its left-hand turn very slowly, perhaps at five miles per hour, and that the accident occurred shortly after the turn was begun, while the car was still directly in the traffic pathway. Michelli further testified that he did not see the other car before the crash and did not apply his brakes before the impact.
Appellant Kern is a male nurse who, on the day of the accident, had left Glendale Sanitarium and proceeded west on Colorado Boulevard to stop at the Thrift Shop. He parked on the north side of Colorado Boulevard about six feet from the alleyway entrance to which Michelli...
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