In Seth v. Lew Hing, 125 Cal.App. 729, 732 [ 14 P.2d 537, 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: "Prelimarily 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.App. 359, 363 [ 295 P. 572, 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.

That obligation does not arise while driving upon a public highway except where danger of injuring another is obvious. In Moss v. Stubbs, 111 Cal.App. 359 [ 295 P. 572, 296 P. 86], a 9 year old boy ran from behind a street car into the path of defendant's truck and was injured by the front wheel before he could be seen by its driver. At page 368 the court said: ". . . There was no danger whatever apparent, and therefore under such circumstances, it cannot be fairly maintained that a duty was imposed on the driver of the truck, as a reasonably prudent person, to sound his horn."

His view was unobstructed at least when the minor reached the retaining wall. Defendant particularly relies upon Moss v. Stubbs, 111 Cal.App. 359 [ 295 P. 572, 296 P. 86]. In that case the boy, nine years of age, darted out from behind a street car directly in front of defendant's car.

Since the evidence in the present case was legally insufficient to support a verdict for respondent, it would serve no useful purpose to discuss the other grounds relied upon by respondent in support of her motion for new trial. ( Henderson v. Braden (1939) 35 Cal.App.2d 88, 91 [ 94 P.2d 625]; Moss v. Stubbs (1931) 111 Cal.App. 359, 370-371 [ 295 P. 572, 296 P. 86].) Order granting a new trial is reversed, and the trial court is directed to enter its judgment in favor of the defendants Glafara Shapiro, Efim Shapiro, and A.J. Lay, individually and doing business as Marina Maintenance Company.

It is contestant's claim that the authorities hold that before a trial court is authorized to grant a new trial on this ground, there must be either an absence of evidence or evidence lacking in probative force to establish the proposition of fact to which it is directed and that it is error to grant a new trial unless the evidence would warrant a judgment in favor of the moving party. Citing such authority as Mosekian v. Ginsberg, 122 Cal.App. 774, 777 [ 10 P.2d 525]; Renfer v. Skaggs, 96 Cal.App.2d 380, 383 [ 215 P.2d 487]; Moss v. Stubbs, 111 Cal.App. 359, 363 [ 295 P. 572, 296 P. 86]; Ellis v. City of Los Angeles, 167 Cal.App.2d 180, 186 [ 334 P.2d 37]. [3] A collection of authorities on the rule is well set forth in Yarrow v. State of California, 53 Cal.2d 427, 434 [ 2 Cal.Rptr. 137, 348 P.2d 687], which recites generally that:

It is well settled that the granting of a new trial is largely within the discretion of the trial judge, will be reversed only if an abuse of discretion clearly appears, and the test is whether there was no substantial evidence which would support a contrary verdict. ( Deshotel v. Atchison, T. S.F. Ry. Co., 126 Cal.App.2d 303, 305 [ 272 P.2d 71]; Moss v. Stubbs, 111 Cal.App. 359, 362 [ 295 P. 572, 296 P. 86].) EVIDENCE

Since there is no means of knowing that the instruction as given, which we consider erroneous under the facts of the case, did not lead the jury into error, the verdict cannot be allowed to stand. ( O'Meara v. Swortfiguer, 191 Cal. 12 [ 214 P. 975]; Oettinger v. Stewart, 24 Cal.2d 133 [ 148 P.2d 19, 156 A.L.R. 1221]; Moss v. Stubbs, 111 Cal.App. 359 [ 295 P. 572, 296 P. 86]; Thompson v. M.K. T. Oil Co. 5 Cal.App.2d 117 [ 42 P.2d 374].) The judgment is reversed.

Both plaintiff and defendant were severely hurt. Defendants concede the familiar rule governing this court in respect to the reviewing of an order of the court granting a new trial is that it is largely within the discretion of the trial court; that in passing upon such a motion the trial court is not bound by the rule of conflicting evidence as is the appellate tribunal, but must hear and consider the evidence for both parties and determine itself the just conclusion to be drawn from it, and if it is satisfied that the finding of the jury is contrary to the weight of the evidence it may grant a new trial, citing such cases as Gordon v. Roberts, 162 Cal. 506 [ 123 P. 288]; Smith v. Royer, 181 Cal. 165 [ 183 P. 660]; and Moss v. Stubbs, 111 Cal.App. 359 [ 295 P. 572, 296 P. 86], but it is claimed that the evidence here produced comes within the well-recognized exception that where there is no substantial conflict in the testimony on the 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, citing such cases as Springer v. Pacific Fruit Exchange, 92 Cal.App. 732 [ 268 P. 951]; Gold v. Arizona Realty etc. Co., 12 Cal.App.2d 676 [ 55 P.2d 1254]; and Harvey v. Machtig, 73 Cal.App. 667 [ 239 P. 78]. Defendants' argument in this respect is that the evidence conclusively shows: (1) That defendants' vehicle was in the passing lane first.

While it is admitted that the trial court's discretion on such a motion is very broad, it is argued that this is a case where it was arbitrarily exercised, since here, as a matter of law, the negligence of the Santa Fe, if there were any, could not have been a proximate cause of the accident. (See Harvey v. Machtig, 73 Cal.App. 667, 677 [ 239 P. 78]; Moss v. Stubbs, 111 Cal.App. 359, 363 [ 295 P. 572, 296 P. 86]; Henderson v. Braden, 35 Cal.App.2d 88, 91 [ 94 P.2d 625]; de la Falaise v. Gaumont-British P. Corp., 39 Cal.App.2d 461, 467 [ 103 P.2d 447].) [1] At the outset, it may be said that the granting of a motion for new trial is largely within the discretion of the trial judge, and will be reversed only if an abuse of discretion clearly appears.

[4] Of course, an order granting a new trial to a plaintiff cannot be upheld if the evidence produced at the original trial, plus the evidence erroneously excluded, plus proper newly discovered evidence, would not support a judgment for the plaintiff. ( Moss v. Stubbs, 111 Cal.App. 359 [ 295 P. 572, 296 P. 86]; Henderson v. Braden, 35 Cal.App.2d 88 [ 94 P.2d 625]; McAtee v. City of Marysville, 111 Cal.App.2d 507 [ 244 P.2d 936].) Appellant does not controvert these propositions, but claims that the evidence produced in the original trial and that offered on the motion for a new trial would not support a judgment in respondent's favor.