Chapman v. Goldberg

Full title: JOE CHAPMAN et al., Appellants, v. BEN GOLDBERG, Respondent

Court: Court of Appeal of California, Second District, Division One

Date published: Sep 13, 1934

140 Cal.App. 644 (Cal. Ct. App. 1934)

35 P.2d 641

Opinion

Docket No. 9607.

September 13, 1934.

APPEAL from an order of the Superior Court of Santa Barbara County granting a new trial. A.B. Bigler, Judge. Affirmed on motion.

The facts are stated in the opinion of the court.

Sheridan, Orr, Drapeau Gardner for Appellants.

David Tannenbaum and David French for Respondent.

CONREY, P.J.

This is a motion by respondent to dismiss appeal or affirm the order granting defendant's motion for a new trial. The action was brought to recover damages for injuries suffered by the plaintiffs, by reason of alleged negligence of the defendant in the operation of an automobile, whereby the defendant's automobile came into collision with an automobile operated by the plaintiff Joe Chapman.

The accident occurred at a time when the plaintiffs, traveling in a westward direction, were making a left turn for the purpose of entering into a service station. At and before the moment of collision the defendant's automobile was traveling in an eastward direction on the same highway. The case was tried before a jury, which rendered its verdicts in favor of the plaintiffs. The court granted the defendant's motion for a new trial upon the ground that the verdicts were against law, and upon the further ground that the evidence was insufficient to sustain the verdicts.

[1] An order granting a motion for a new trial will be affirmed if it may be sustained on any ground; and upon an appeal from an order granting a new trial the presumption is in favor of the order. ( Weaver v. Shell Oil Co., 129 Cal.App. 232 [ 18 P.2d 736].)

[2] The statement of the evidence as set forth in appellants' brief is alone sufficient to show that there was a substantial conflict in the evidence concerning the alleged negligence of the defendant, as well as in the evidence concerning the alleged contributory negligence of the plaintiff. The plaintiffs have failed to establish their claim of abuse of discretion on the part of the trial court in granting the motion.

The order granting motion for a new trial is affirmed.

York, J., and Hahn, J., pro tem., concurred.