Espinoza v. Rossini

The record discloses that on June 25, 1964, the court signed an order granting new trials to both respondents, and that the order was entered on the court minutes on the same date.^[1] On June 28th the court also granted the respondents’ motions for judgment notwithstanding the verdict, and this order was entered in the court minutes on that date. Since a motion for a new trial is determined when an order ruling on the motion is either signed by the judge and filed with his clerk or is entered on the permanent court minutes,^[2] we must first decide whether the court deprived itself of the power to rule on the motions for judgment notwithstanding the verdict by ruling on the motions for a new trial three days earlier.^[3]

It is the general rule that where an order granting a new trial is regularly made by the trial court and correctly entered by the clerk in the court minutes, the court's jurisdiction is exhausted, and it may not thereafter vacate or modify the order. (Hunydee v. Superior Court, 198 Cal.App.2d 430 [ 17 Cal.Rptr. 856 ].) In fact, in Sparr v. Byers, 139 Cal.App. 668 [ 34 P.2d 787 ], the court implied that if a new trial is actually granted, jurisdiction is lost except to retry the case.^[4]

We do not believe that the general rule is applicable to the facts of this case. Code of Civil Procedure section 629, which authorizes an aggrieved party to move for judgment notwithstanding the verdict, provided prior to 1961 that the motion could be made in the alternative with a motion for new trial. The 1961 amendments relieved the party of the burden of making these motions in the alternative. And, the section as amended also provides that the motion shall be made within the period prescribed for the filing of a motion for a new trial; that the court shall not rule on the motion until the period for

II That the court erred in granting a new trial to each defendant because he had properly instructed the jury on the doctrine of last clear chance.

We will consider each of these contentions separately.

Our review of the record discloses evidence upon which a jury could, by disregarding conflicts and resolving all presumptions, inferences, intendments and questions of doubt in favor of appellant, have reached a verdict favorable to him. Under such circumstances it is improper for the trial court to grant a motion for judgment notwithstanding the verdict. As stated by the Supreme Court in Quintal v. Laurel Grove Hospital, 62 Cal.2d 154 , 159 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ] : “. . . Such a motion may be granted, properly, only when, disregarding the conflicting evidence, and indulging in every legitimate inference in favor of the plaintiff, the result is a determination that there is no evidence of substantial nature to support the verdict. ...”

Respondents admit that from the evidence presented a jury could have very well found that Rossini, Jr. was negligent, and that his negligence was a proximate cause of the appellant’s injuries. As a matter of fact, the jury, by accepting his own account at face value, could have found him negligent. He testified that his vision was restricted by sun glare to between 20 to 46 feet; that he nevertheless proceeded down the highway at a speed of 30 to 35 miles per hour; and that he struck the trailer which was traveling on its own side of the road, from the rear.^[5] Thus, there is ample evidence from which the negligence of respondent Rossini, Jr. could have been deduced and it is reasonably apparent that the trial court, relying on section 21712 of the Vehicle Code, concluded that the appellant was negligent as a matter of law; that his negligence contributed as a proximate cause to his injury; and that there was insufficient evidence for the jury to apply the doctrine of last clear chance.^[6]

Appellant concedes that he was riding on the drawbar

It is true, as respondents argue, that there was no evidence that appellant was expressly instructed by his employer to stand on the drawbar to warn the tractor driver of traffic approaching from the rear. Express instructions, however, are not absolutely necessary in order that the employee’s performance be within his duties. It is sufficient if the act committed directly produces the result desired by the employer (Jameson v. Gavett, 22 Cal.App.2d 646 [ 71 P.2d 937 ]) or if the act is an incident to his duty and was performed for the benefit of the employer (Payne v. Industrial Acc. Com., 84 Cal.App. 657 [ 258 P. 620 ]). Appellant’s employer testified that he instructed his workers (including the appellant) to leave early, proceed carefully and to stay partly on and partly off of the road. It is, therefore, arguable that it was necessary for someone to stand on the drawbar to warn the driver of traffic approaching from the rear so as to make certain that on such occasions the slow-moving vehicle was half on and half off of the road. It is also arguable that in order to proceed safely, appellant’s presence on the drawbar was necessary to help Pena (apparently an inexperienced driver) drive the tractor.

Assuming arguendo that the appellant was negligent as a matter of law, we also agree with appellant’s contention that whether this negligence contributed as a proximate cause to his injury was a question of fact for the jury to decide. The impact between the colliding vehicles was severe. It knocked the two front wheels off the trailer, bent both rear wheels and bent the trailer frame. Moreover, the Zamorras, who were riding lawfully in the trailer were violently thrown on the highway.^[8] The jury, therefore, was entitled to consider whether the force of the collision was so great that appellant would have been injured anyway, i.e., even if he had been in the trailer. That such a determination under proper circumstance is for the jury is supported by the case of Dallas Ry. Co. v. Eaton (Tex. Civ. App.) 222 S.W. 318 . In that case plaintiff was riding upon the running board of the vehicle which was negligently struck by the defendant’s vehicle. It was pushed 25 to 125 feet down a street, but plaintiff’s vehicle was not overturned and none of the other occupants were injured. The trial court instructed the jury that plaintiff was guilty of negligence as a matter of law in riding upon the running board, but left the issue of proximate cause for the jury’s determination. In affeming, the Texas appellate court stated at page 319 : . . It can be certainly said that it conclusively appears from the facts of this ease that plaintiff would not have been injured in the manner and way he was injured, but for his position on the running board of the jitney. But can it be said with certainty that he would not have been injured at all, but for such position? It can never be known whether, if the occupants of the automobile had all been on the inside, it might not have been overturned, with even more serious results to the occupants than was sustained. ...”

The reasoning of this decision was applied in Farole v. Eichman, 39 Cal.2d 822 [ 249 P.2d 261 ]. In that ease the plaintiff was riding on the handlebars of a bicycle and was struck while

While the situation presented in Farole is extreme, the rationale of the case is that contributory negligence as a matter of law does not necessarily bar the plaintiff’s recovery, and that under proper circumstances, whether such contributory negligence is a proximate cause of the injury is a question of fact.

In support of the contrary position, respondents strongly rely on Lorry v. Englander Drayage & Warehouse Co., 108 Cal.App. 116 [ 291 P. 467 ]; Reeves v. Lapinta, 25 Cal.App.2d 680 [ 78 P.2d 465 ]; and the dissenting opinion of Justice Traynor in Combs v. Los Angeles Ry. Corp., 29 Cal.2d 606 [ 177 P.2d 293 ], These cases, however, are distinguishable. In Lorry plaintiff was riding upon the running board on the left side of a jitney bus in violation of the statute. The bus was struck by defendant’s truck on the left side and plaintiff was injured. The impact, however, was not severe, each vehicle sustaining only minor damages. In fact, two other passengers who were riding upon the running board on the right side of the bus were not even thrown off. There was no evidence that anyone else was injured. To the contrary, it was reasonably certain from the evidence that the plaintiff would not have been injured had he been riding inside of the bus. Under these circumstances the appellate court held that plaintiff’s violation of the statute was a proximate cause of his injury as a matter of law.

In Beeves, plaintiff, who was a passenger in defendant’s bus, was standing on the step of the bus, in violation of a Los Angeles city ordinance, as it traveled along the street with the door open. The bus gave a jerk and the plaintiff was thrown to the street. As in Lorry, it was reasonably certain that plaintiff would not have been injured had she not violated the ordinance.

In Combs, the evidence clearly indicated that the plaintiff would not have been injured except for his position on the street car steps. Significantly, at pages 614-615 of the dissenting opinion, Justice Traynor stated:^[9] “. . . The unconflicting evidence disclosed by the record shows that the automobile

Respondents’ argument that the plaintiff would not have been injured in the manner that he was injured but for his position on the drawbar is persuasive. As he asserts, at the time of the collision the trailer was obviously pushed forward, with the front of the trailer wedging appellant’s legs below the knee against the “power take off’’ shield of the tractor, thereby causing a traumatic amputation of the left leg below the knee, as well as the fractured bones of the right leg. The fact remains, however, that the plaintiff’s position on the tractor bar was not a cause of the accident. And, as stated by the court in Dallas Ry. Co. v. Eaton, supra, 222 S.W. 318 , can it be said with certainty that he would not have been injured at all but for such position? We think not. Consequently, it was up to the jury to consider all of these factors in arriving at a decision.

Respondents’ motions for new trial were made on all grounds contained in Code of Civil Procedure section 657. The trial judge, however, did not specify in his order any ground for granting the motions, but he did file an extensive memorandum setting forth the precise basis for the decision. In this memorandum it is clear that he concluded that he had erroneously instructed the jury on the doctrine of last clear chance and that this, and not insufficiency of the evidence to support the judgment or some other error, was his only reason for granting the motions.^[10] Consequently, the appellant’s contention that the motions were improperly granted turns on the propriety of the trial court’s instructing the jury on the doctrine of last clear chance. Under similar circumstances the court in Bua v. G.

There is hardly any question but that there was sufficient evidence for the jury to find that the first element of the doctrine of last clear chance was present in this case. The appellant was obviously in a position of danger at the time of the accident from which he was unable to escape. Before that he was in a position of danger either because he was engaged in the performance of his duty or because he was inattentive or totally unaware of his danger. As stated in Peterson v. Burkhalter, 38 Cal.2d 107 , 110-111 [ 237 P.2d 977 ] : “. . . the inattentive plaintiff, as well as the physically helpless one, comes within the scope of the rule. It applies ‘. . . not only where it is physically impossible for him to escape, but also in eases where he is totally unaware of his danger and for that reason unable to escape. . . . ’ ”

There was also sufficient evidence for the jury to find that the respondent Rossini, Jr. knew that the appellant was in a position of danger and further knew, or in the exercise of ordinary care should have known, that appellant was unable to

Moreover, the jury could find that he saw people in the trailer and probably even saw appellant riding on the draw-bar. As a matter of fact, the evidence indicates that respondent Rossini, Jr. resided next door to the Zora Cisi Ranch, was familiar with farming practices and the practice of hauling migrant workers in the trailer pulled by a tractor, and had heard the tractor pass by his house the very morning of the accident. Prom all of this, the jury could find that when he first observed the tractor traveling down the highway he was fully aware of all of the circumstances, and if he did not actually see appellant standing on the trailer hitch he knew of appellant’s presence in a position of danger, and should have known that appellant was unable to escape therefrom in the event of collision.^[14]

The remaining question is whether there was sufficient evidence for the jury to consider the existence of the third element. As we have stated, the trial judge felt that the evidence was to the contrary and thus concluded that he had erroneously instructed on the doctrine. We do not agree. Although the trial judge's opinion as to how the accident happened is logical and well reasoned, it does not allow for other possible interpretations of the evidence which were also within the province of the jury to make. Por example, from the evidence, it was possible for the jury to conclude that Rossini, Jr. had seen the trailer and/or tractor from a considerable distance;

Moreover, the trial judge’s interpretation unduly restricts the application of the doctrine of last clear chance. It is significant that the word “thereafter" as used by the court in Brandelius v. City & County of San Francisco, supra, 47 Cal.2d 729 , in describing the third element refers back to the second element and this means that the doctrine is applicable if the negligent act occurs after the defendant has become aware of the plaintiff’s position of danger, and his inability to escape therefrom. Consequently, applying the court’s own reasoning as to how the accident occurred, the jury could have found that Rossini, Jr. blindly attempted to pass (or at least was negligent in his passing maneuver) and that this act of negligence took place after he knew of appellant’s position of danger.

For the foregoing reasons, we conclude that the trial court improperly granted the respondents’ motion for judgment notwithstanding the verdict, and that he was wrong in granting a new trial because he had not erroneously instructed the jury on the doctrine of last clear chance, as he believed when he prepared his memorandum. A final question, therefore, is this: Should we grant the new trial because of insufficiency of the evidence to support the verdict?^[15] We believe that this question was clearly and unequivocally answered by the California Supreme Court in Malkasian v. Irwin, 61 Cal.2d 738 [ 40 Cal.Rptr. 78 , 294 P.2d 822 ], In that case the trial judge had emphatically declared for the record that he believed that the evidence was insufficient to support the verdict. The minute order, however, was not in accord with the court’s expressed intent. The Supreme Court at page 744 of the opinion, after calling attention to the provisions of section 657 of the Code of

Since the respondents have failed to call our attention to any other error in support of the trial court’s order granting their motions for a new trial, we must reverse.

The order granting a new trial and the judgment notwithstanding the verdict are reversed with directions to enter a judgment on the verdict in favor of Raymondo Espinoza and against Albert William Rossini, Jr. and Rossini Brothers, in the total sum of $32,000 plus costs, the liability of Rossini Brothers under said judgment to be limited to $10,000 plus costs.

Conley, P. J., and Stone, J., concurred.

A petition for a rehearing was denied January 3, 1967, and respondents’ petition for a hearing by the Supreme Court was denied February 1, 1967.