Mitchell v. Southern Cal. Gas Co.
| Decision Date | 20 January 1954 |
| Citation | 122 Cal.App.2d 692,265 P.2d 118 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MITCHELL v. SOUTHERN CALIFORNIA GAS CO. et al. Civ. 19695. |
Demler & Eckert and Charles E. Samuel, Long Beach, for appellant.
W. P. Smith, Los Angeles, for respondent Cartwright.
T. J. Reynolds and Neil G. Locke, Los Angeles, for corporate respondent.
Plaintiff, Lawrence G. Mitchell, was driving an automobile south on Grove street, in San Bernardino county. Defendant, James Thomas Cartwright, was driving another automobile east on Merrill street.
At the intersection of Grove and Merrill there was a boulevard stop, which it was plaintiff's duty to observe and to obey. Merill was a through street.
The intersection was in open farming country; but there were eucalyptus and walnut trees on plaintiff's right-hand side, on the west side of Grove. These trees interfered somewhat with the vision of both drivers across the field, as they approached the intersection. Both drivers had been through the intersection many times.
It was late afternoon, but not dark. The weather was clear and the pavements were dry.
The two automobiles collided within the intersection.
Damages from the collision would not have been serious, except that plaintiff's automobile was knocked toward the southeast corner of the intersection, and over a gas meter installation maintained by defendant, Southern California Gas Company.
The meter installation consisted of a riser coming from an underground service pipe, two regulators, and a meter. Around the installation was a 'three-leg' guard, built of 2-inch pipe. The meter installation was in cultivated ground, beyond a roadway gutter, and an earthern bank or shoulder, but was within the boundaries of the highway.
The projection of plaintiff's automobile over the meter caused a break in the gas pipe (riser) below ground. Escaping natural gas from the broken riser caught fire; and, like a giant blow torch, burned through the floor of plaintiff's car, and burned plaintiff, who was sitting dazed in the driver's seat.
Plaintiff was terribly injured. He was in the hospital for months, unable to work for more than a year, and will probably never fully recover.
This action was tried by a jury, which rendered a verdict for plaintiff against both defendants for $154,396.92.
Judgment was entered in accordance with the verdict.
Then the trial judge ordered judgment notwithstanding the verdict, as to the defendant driver, Mr. Cartwright; and, on the ground of insufficiency of the evidence, ordered a new trial as to the defendant gas company.
Appeals from both orders have been consolidated, and have been argued and briefed together.
As the rules are essentially different, each appeal will be discussed separately.
The Appeal from the Judgment Notwithstanding the Verdict.
The fundamental rule as to when a trial judge may order judgment notwithstanding the verdict of a jury is repeated in almost the same language in many cases:
A judgment notwithstanding the verdict may properly be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from plaintiff's evidence, the result is a determination that there is no evidence sufficiently substantial to support the verdict. Champion v. Bennetts, 37 Cal.2d 815, 236 P.2d 155; Washington v. City & County of San Francisco, 111 Cal.App.2d 368, 244 P.2d 774; In re Lekos' Estate, 109 Cal.App.2d 42, 240 P.2d 387; In re Wellauer's Estate, 107 Cal.App.2d 268, 236 P.2d 906; Tremeroli v. Austin Trailer Equipment Co., 102 Cal.App.2d 464, 227 P.2d 923; Howell v. Ducommon Metals & Supply Co., 101 Cal.App.2d 163, 225 P.2d 293; and see 28 West's California Digest, Judgments, k199(3.10).
With the rule in mind let us turn to the evidence.
The defendant, Mr. Cartwright, two passengers in his car, and a witness who was coming toward the intersection from the east, all testified that plaintiff, Mr. Mitchell, failed to make the boulevard stop; that he went into the intersection without stopping and at a speed of more than thirty miles an hour.
An officer of the California Higwhay Patrol who interviewed Mr. Mitchell at the hospital testified that he admitted he didn't make the boulevard stop. And the records of the Justice's Court show a plea of guilty by Mr. Mitchell to the criminal offense of not stopping at the intersection. However, there is not much probative value in the last two items of evidence. The testimony of the traffic officer as to the admission of Mr. Mitchell, when he was in the hospital, incoherent from pain, and swathed in bandages, does not commend itself to that method of getting evidence, or of instituting criminal proceedings, by an office of the state. Mr. Mitchell's plea of guilty was made by his father, without his knowledge.
Of course, if this were all of the evidence in the case, plaintiff's own contributory negligence, as a matter of law, would bar any recovery by him against either defendant.
But plaintiff's testimony is to the contrary. Portions of it are as follows:
On direct examination:
' * * *'
On cross examination:
' * * *'
Again:
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