[9] "Great latitude is given to the trial court and its action in granting the motion is conclusive upon an appellate court unless it clearly appears that it has abused its discretion." ( Anderson v. Dahl, 121 Cal.App. 198, at pp. 200-201 [ 8 P.2d 883].) No abuse of discretion appears in the present case.
[8] It is well settled that a very wide latitude is given to the trial court in the matter of granting a new trial on the ground of insufficiency of the evidence to justify the verdict, especially where, as conceded by plaintiff's briefs in the former case, there is substantial conflict in the evidence. ( Anderson v. Dahl, 121 Cal.App. 198, 200 [ 8 P.2d 883]; Springer v. Pacific Fruit Exchange, 92 Cal.App. 732, 734 [ 268 P. 951]; Ogando v. Carquinez Grammar Sch. Dist., 24 Cal.App.2d 567, 569 [ 75 P.2d 641].) [9] As the numerous decisions indicate, the trial court exercises its independent discretion in passing on the motion for new trial, and if it believes the weight of the evidence is against the decision, it may grant a new trial even though the inferences it may draw are opposed to those drawn by the jury.
In fact there was conflict between her testimony and that of respondent and the three other witnesses to the accident on other material issues. All of this brings the case within the rule which has been reiterated time and again, that upon appeal the presumption is in favor of the order and against the verdict that the trial court has the duty of weighing the evidence, considering the conflicts in it and then in its discretion determining whether or not a new trial should be granted on the ground of the insufficiency of the evidence ( Scott v. Southern Pacific Co., 100 Cal.App. 634 [ 280 P. 996]; Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 883]; Woods v. Walker, 57 Cal.App.2d 968 [ 136 P.2d 72]). No abuse of discretion on the part of the trial court is shown by this record, and the order of the trial court is affirmed.
All of those cases hold that it is not always negligence to make such a turn; that what is required of a driver making such a turn is that he exercise due care in doing so; that in such cases the questions of negligence and contributory negligence are of fact for the trier of fact and not for an appellate court. Hagenah v. Bidwell, 46 Cal.App. 556 [ 189 P. 799]; Straten v. Spencer, 52 Cal.App. 98 [ 197 P. 540]; Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 883]; Lowe v. City of San Diego, 8 Cal.App.2d 440 [ 47 P.2d 1083]; Abrams v. Hubert, 10 Cal.App.2d 404 [ 51 P.2d 884]; Jolley v. Clemens, 28 Cal.App.2d 55 [ 82 P.2d 51]; and Finney v. Wierman, 52 Cal.App.2d 282 [ 126 P.2d 143], all involved situations where the drivers of automobiles were confronted with sudden peril. [1] The question of the contributory negligence of plaintiff here must be measured by the facts of this case.
[2] It was the duty of the trial court on the hearing of the motion for a new trial to weigh the evidence and to determine in its discretion whether a new trial should be granted on the ground of the insufficiency of the evidence and in so doing, it was not bound by the fact that there may have been a substantial conflict in the evidence. As this court said in Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 883] at page 200: "Appellant's main argument in support of his contention that the trial court erred in granting the motion is based upon a misconception of the function of the trial court in passing upon such motion.
To the contrary the jurors should have been instructed in legal effect, in accord with the principle enunciated in Straten v. Spencer, (1921) 52 Cal.App. 98, 108 [ 197 P. 540], that if they believed the facts to exist as testified to by respondent Finney and epitomized above, they must conclude that she was not guilty of negligence in entering the center or the easterly traffic lanes. [3] The operator of a car obviously is not guilty of negligence as a matter of law merely because he drives the car into another lane or onto the left side of the highway ( Hagenah v. Bidwell, (1920) 46 Cal.App. 556, 560 [ 189 P. 799]; Anderson v. Dahl, (1932) 121 Cal.App. 198, 202 [ 8 P.2d 883]; Lowe v. City of San Diego, (1935) 8 Cal. App. (2d) 440, 442 [ 47 P.2d 1083]). [1b, 2b] The fact that plaintiff's (Finney's) proposed instruction No. 3 was the only one offered by her which was directly pertinent to and qualificative of defendants' Nos.
Even if this court reached a conclusion in conformity with the views of the jury, it could not impose and substitute its views upon this controvertible issue unless the trial court abused its discretion. ( Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 883].) We are not prepared from an examination of the record to so hold.
(California Vehicle Act, sec. 122 [a], [Stats. 1931, p. 2124]; Buzby v. Lewis, 103 Cal.App. 124 [ 283 P. 958]; Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 883].) [2] The court might well have believed from this evidence that defendant driver was negligent in failing to observe the headlights of the motorcycle before he came directly upon it. If, as he claimed, the fog prevented his observing the lights at a greater distance, this fact, together with testimony as to the skid marks and the force of the impact, furnished evidence that he was driving at a negligent rate of speed under the circumstances.
As expressed in the dissenting opinion in the same case: "It is not the law to say to one travelling on the right side of the highway that he must keep his course, even where it is impossible to turn to the right and permit a reckless, wilful or drunken driver, who has by his failure to obey the law in the first instance placed the former in a precarious position, to drive directly upon him to his certain injury and probable death." This court, in Hagenah v. Bidwell, 46 Cal.App. 558 [ 189 P. 799], and again in Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 883], has adopted a view contrary to that expressed in the majority opinion in the Idaho case. In the former, under a state of facts similar to the present case, it was said: "It is argued that at the moment of collision the defendants were on their left-hand side of the road.
Under the record before this court, the issues of negligence and contributory negligence in this case present primarily questions of facts upon which the finding of the jury is conclusive. [4a] From the evidence, the jury was entitled to conclude the defendant's speed of between 55 and 60 miles per hour was not excessive under the circumstances, ( Gayton v. Pacific Fruit Express Co., 127 Cal.App. 50, 57 [ 15 P.2d 217]; Greenwood v. Summers, 64 Cal.App.2d 516 [ 149 P.2d 35]; Pollind v. Polich, 78 Cal.App.2d 87 [ 177 P.2d 63]); that in swerving to the left to avoid an accident she acted as an ordinary prudent person under the circumstances, ( Anderson v. Dahl, 121 Cal.App. 198 [ 8 P.2d 888]; Uhl v. Fertig, 56 Cal.App. 718 [ 206 P. 467]); that the skid marks made only by the left wheels of her car were not the result of defective brakes; and that she had the right of way. (Veh. Code, ยง 552; Lewis v. Doyle, 149 Cal.App.2d 176, 181 [ 307 P.2d 965]; McGuire v. San Diego Transit System, 143 Cal.App.2d 509, 511 [ 299 P.2d 905]; Shivers v. Van Loben Sels, 109 Cal.App.2d 286 [ 240 P.2d 635]; Pollind v. Polich, 78 Cal.App.2d 87, 90 [ 177 P.2d 63]; Zwerin v. Riverside Cement Co., 52 Cal.App.2d 715 [ 126 P.2d 920]; Inouye v. McCall, 35 Cal.App.2d 634, 637 [ 96 P.2d 386].)