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District Court of Appeal, Second District, Division 1, California.


Civ. 14931.

Decided: October 31, 1945

Wm. J. McNichols and Josiah Coombs, both of Los Angeles, for appellant. Bryce P. Gibbs and Kenneth K. Scott, both of Los Angeles, for respondent.

Plaintiff appeals from an order granting defendant's motion for a new trial. Plaintiff received personal injuries when a bus operated by defendant corporation upon which she was a paying passenger collided with an automobile parked on the highway over which defendant's bus was traveling. The jury returned a verdict in favor of plaintiff and defendant moved for a new trial. The minute order in connection therewith, as reflected by the clerk's transcript on appeal, reads in part as follows: ‘Said motion is argued and is granted on the grounds of the insufficiency of the evidence.’

Appellant asks us to loook to the record of proceedings which led to the entry of the aforesaid order, insisting that such record conclusively indicates that the real ground upon which the new trial was granted was ‘error in law, occurring at the trial and excepted to * * * by the defendant’ (Code Civ.Proc. § 657, subd. 7), and not for insufficiency of the evidence to justify the verdict.

The rule with reference to interpretation of orders granting a new trial is thus stated in Newman v. Overland Pac. Ry., 132 Cal. 73, 75, 64 P. 110, 111: ‘The order which is entered in the minutes is the only record of the court's actions, and is to be measured by its terms, and not by the reasons which the court may give for it.’ See also Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 621, 75 P. 332, and Frost v. Los Angeles Ry. Co., 165 Cal. 365, 369, 132 P. 442. The deliberations of courts are conclusively mreged in their orders or judgments and the oral or written opinions of trial judges may not be considered for the purpose of reversing such judgments or orders. DeCou v. Howell, 190 Cal. 741, 751, 214 P. 444; Southern California, etc., Lines v. San Diego, etc., Ry. Co., 66 Cal.App.2d 672, 676, 152 P.2d 470. ‘The minute order must govern, and it must be conclusively presumed to set forth the action taken by the court upon the motion.’ Condon v. Ansaldi, 203 Cal. 180, 181, 263 P. 198, 199.

That the rule relied upon by respondent is not without exception, however, is evidenced by the case of Krebs v. Los Angeles Ry. Co., 7 Cal.2d 549, 552, 61 P.2d 931, 932, wherein it was held that therein an appellate tribunal should consider the record of proceedings which led to the entry of the order to determine the real ground upon which it had been made. In that case the court discussed some of the hereinbefore cited cases, saying the rule therein announced is reasonable, but that it would be unreasonable to apply it in the Krebs case, wherein, after both plaintiffs secured judgments on verdicts in their favor for damages resulting from an automobile accident assessed at $10,000 and $2,000 respectively, the trial court made its order granting a new trial as to both plaintiffs ‘on the ground of excessive damages.’ On appeal of both plaintiffs from said order, the Supreme Court said, 7 Cal.2d at page 552, 61 P.2d at page 932: ‘The remarks of the court made at the very time he rendered his order orally from the bench, when considered in the light of what he had said on the preceding day, indicate that he granted the new trial as to both plaintiffs on the ground of excessive damages to Grace Krebs alone.’ For that reason, the order granting a new trial was affirmed as to Grace Krebs and reversed as to the other plaintiff.

In view of the holding in the case just cited, it would appear to be the duty of the court in the instant appeal, where it is contended that the order made does not disclose the real ground upon which it was predicated, to give consideration to the oral statements of the trial judge made from the bench at the time the order appealed from was made. In that regard, the record reveals that after argument on the motion for a new trial the following transpired:

‘The Court: There is no question about that. Well, I think I made a mistake, gentlemen, so far as Dr. Gerty was concerned. It may not have made any difference, so far as this jury was concerned, but I think I should have let him testify. I am one that will always admit a mistake if I have made one, if I find any reason to sustain it.

‘Mr. Scott: The Court at that time was a little in doubt about it. If I had had the case which I just read to the Court, I am confident the Court would have permitted Dr. Gerty to testify.

‘Mr. McNichols: I don't think those cases are in point at all. The fact that she came in there under mistake forbids him from testifying. Her mental condition would not have changed that verdict one dollar.

‘The Court: It might have increased it.

‘Mr. McNichols: It is possible.

‘Mr. Scott: No. He would have testified it had nothing to do with it.

‘The Court: Well, that is a disputed question. I think I made a mistake, gentlemen, and I will admit it, and therefore grant the motion for new trial. Maybe you can straighten it out again.

‘Mr. Scott: Will the Court designate the grounds upon which he grants the motion?

‘The Court: Insufficient evidence.

‘(Discussion off the record)

‘The Court: The motion for new trial is granted upon the grounds of insufficient evidence in this case of Ballard v. Pacific Greyhound Lines.’

While the foregoing statements made by the trial judge evidence an inclination upon his part to believe that he had committed an error of law during the trial, such statements when taken as a whole do not exclude the assumption that he was also of the opinion that the evidence was legally insufficient to prove some essential element of plaintiff's case or to sustain the judgment in her favor. Under these circumstances, the minute order must govern, and it must be conclusively presumed to set forth the action taken by the court upon the motion.

When a new trial is granted upon the ground of insufficiency of the evidence, the question presented to the appellate tribunal is not whether there is in the record sufficient evidence to support the judgment on appeal, but whether it clearly appears that in granting the motion there has been an abuse of discretion. Anderson v. Dahl, 121 Cal.App. 198, 8 P.2d 883. Hence the fact that if the appeal herein were one taken from the judgment entered on the verdict in favor of plaintiff, it would be held that the evidence was legally sufficient to sustain such judgment, is not controlling. Unless the determination of the trial court involves a mnaifest abuse of discretion or there is no substantial conflict in the testimony on material issues, or the evidence as a whole is insufficient to support a verdict in favor of the moving party, an appellate court is without power to interfere with the trial court's action. In Dempsey v. Market St. Ry. Co., 23 Cal.2d 110, 113, 142 P.2d 929, 930, the rule is thus succinctly set forth: ‘* * * The rule has long been settled that where the evidence is in substantial conflict the lower court's discretion to grant a new trial on the ground of insufficiency of the evidence will be upheld on appeal.’ But it is also established law that the conflict must be substantial, and upon material points, not simply apparent or fanciful and not related to controlling issues. Zibbell v. Southern Pac. Co., 160 Cal. 237, 241, 116 P. 513.

Appellant herein advances the contention that there is no conflict in the evidence as to any essential or controlling fact in issue. It is admitted by the pleadings that defendant is a corporation engaged in the business of operating bus lines for the purpose of carrying passengers for hire; that about 6:30 a.m. on January 3, 1943, plaintiff ‘was a paying passenger on a bus owned and operated by’ defendant; that the bus was at said time on a paved highway between Salinas and San Luis Obispo, driven by ‘an agent, servant and employee’ of defendant ‘acting within the scope of his employment’. Allegations contained in the complaint and put in issue by the answer of defendant are that, at said time and place, ‘said bus * * * swung around a curve on the highway * * * at a high rate of speed, and at about 40 or more miles per hour; that by reason of said high rate of speed, and the careless, negligent and unlawful operation of said bus by * * * an employee of said corporation, it struck an automobile, on said highway, which caused the said bus to run into an embankment at the side of said highway, and to thereafter overturn, injuring the plaintiff * * *; that the proximate cause of the said injuries to the plaintiff was the negligent, careless and unlawful operation of said bus, as alleged above’; that the plaintiff suffered specified physical injuries and loss of earning capacity.

The uncontroverted evidence shows that, at said time and place, the bus in which plaintiff and her two sons were passengers from Salinas to Los Angeles, after completing a wide curve, collided with an automobile, climbed an embankment on the right hand side of the highway, and turned over. The evidence further shows, without conflict, that the accident occurred on a two lane paved highway, with a white line in the center and with no noticeable grade, which highway was dry and in good condition, upon which there was no other traffic, either ahead or behind the bus; that the lnight was only medium dark; that the driver was experienced and familiar with the highway; that there was no failure of mechanical controls of the bus until after it collided with the automobile; and that the automobile with which the bus collided was not moving had two wheels off the pavement and one almost off, and, therefore, projected onto the highway less than its own width, which necessarily left ample room on the pvement for the bus to pass to its left. It is also uncontroverted that the driver saw the car when the bus was 100 feet from it, and that he did not apply or attempt to apply the brakers. That in said accident plaintiff was injured is also uncontroverted.

‘A carrier of persons for reward must use the utmost care and diligence for their safe carriage * * * and must exercise to that end a reasonable degree of skill.’ Civ. Code, § 2100. Under the facts of the case at bar there can be no claim of contributory negligence. Proof of an injury to a passenger on a bus caused by the operation of the bus casts upon the carrier the burden of proving that the injury was occasioned by some cause which human care and foresight could not prevent. Lynch v. Market St. Ry. Co., 130 Cal.App. 433, 438, 19 P.2d 1009. The carrier is liable to a passenger for any injuries which could have been avoided by the driver of the vehicle, in the careful operation thereof. 2 Cal.Jur.Supp. 542; Duran v. Pickwick Stages System, 140 Cal.App. 103, 108, 35 P.2d 148; Holt v. Yellow Cab Co., 124 Cal.App. 385, 391, 12 P.2d 472; Leonard v. Pickwick Stages System, 120 Cal. 512, 516, 517, 7 P.2d 1059.

Respondent in its brief discusses the doctrine of res ipsa loquitur and cites cases claimed to be authority for its contention that the doctrine cannot be applied to the facts in the instant action. What was said in Seney v. Pickwick Stages System, 82 Cal.App. 226, 232, 255 P. 279, 281, is applicable to the case with which we are here concerned. In the cited case the court said: ‘We believe the evidence in this case absolutely establishes the negligence of the defendants, with or without the application of the doctrine of res ipsa loquitur.’

In the last cited case, wherein a petition by appellant to have the cause heard in the supreme court after judgment in the district court of appeal was denied, the driver of the stage testified that ‘he was driving around a right-hand curve where he could not see the road more than 15 feet ahead, at a speed of 12 to 15 miles per hour, when he saw a two-by-four stick in the road about 12 feet ahead, projecting 2 1/212 or 3 feet into the road, which was 20 feet in width; that he drove around the stick with the front wheels of the car, but, on account of the curve in the road the hind wheels struck the two-by-four, and skidded off the road, and that the car overturned. * * *’ The court said: ‘It is evident that the driver made no effort to apply the brakes when he first saw the obstruction, but that he attempted to drive around it without reducing his speed. * * * It is a significant fact that the marks on the roadway caused by the application of the brakes were after the driver had turned to avoid the obstacle. * * * Under the facts involved in this case the stage would not have left the road and overturned, except for the negligence of the defendant, and such negligence is not a risk assumed by the plaintiff.’

The evidence in the instant case shows without conflict that the driver of defendant's bus, when he saw the automobile 100 feet ahead of him, failed to apply his brakes and thereby slacken his speed, and that he made no attempt to slow down until after the collision with the automobile, which collision, according to the driver's testimony, broke the air line, made the brakes useless, and caused the bus to go ‘out of control’. The failure of the bus driver to apply his brakes under the conditions present was negligence. Poe v. Lawrence, 60 Cal.App.2d 125, 132, 140 P.2d 136; Boccalero v. Wadleigh, 113 Cal.App. 376, 379, 298 P. 526, 527. The bus driver was bound to anticipate that other cars might be on the highway at any point and to ‘keep his machine under such control as will enable him to avoid a collision’. Boccalero v. Wadleigh, supra; Reaugh v. Cudahy Packing Co., 189 Cal. 335, 340, 208 P. 125.

In Yates v. Morotti, 120 Cal.App. 710, 8 P.2d 519, 521, where defendant's automobile traveling ‘at 35 to 45 miles an hour’, collides with plaintiff's automobile which was at the time parked on the wrong side of the street, and concerning which defendant said: ‘I was seventy-five feet away from it when I first saw it was not moving’, the court affirmed judgment for plaintiff, and at page 715 of 120 Cal.App., at page 521 of 8 P.2d, said: ‘This was ample space within which to turn the course of his car so as to avoid the parked vehicle. Evidently he neither slackened the speed of his car nor attempted to change its course. * * * Under such circumstances, it may not be reasonably said the defendants were not guilty of negligence’, and on page 718 of 120 Cal.App., at page 522 of 8 P.2d, ‘The driver of the defendants' car actually saw the parked car and realized it was stationary when he was 75 feet away. There was no other traffic obstructing the street. He then had ample time, in the exercise of ordinary care, to avoid the accident. The doctrine of the last clear chance will therefore support the findings and judgment of the court. * * *’

In the case of Gambrel v. Duensing, 127 Cal.App. 593, 16 P.2d 284, judgment for plaintiff was affirmed. Defendant, in order to avoid a horse and rider at the edge of the pavement on her side, pulled left and collided with plaintiff's automobile. The court at page 598 of 127 Cal.App., at page 286 of 16 P.2d, said: ‘* * * the obstruction which led to the collision in this case * * * was on the side of the highway being used and occupied by the defendant; that under such circumstances it was necessary that the defendant should have her automobile under such control as to enable her to prevent injury to person or property. * * * there is testimony to the effect that there was a clear passage afforded * * * which, had the defendant reduced the speed of her car so as to have proper control thereof, she might have passed the horses without injury to anyone. If, by reason of not having reduced her speed sufficiently to have her automobile under the required control, the defendant * * * lost control of her car, and was unable to propel the same along the clear passage afforded * * * the question of defendant's negligence was established and her responsibility for all attendant injuries fixed.’

In Pate v. Pickwick Stages System, 125 Cal.App. 670, 14 P.2d 174, a stage struck the two automobiles of the two plaintiffs which had stopped at an angle blocking the highway after a slight collision between them. The court affirmed judgments for plaintiffs, and at page 673 of 125 Cal.App., at page 175 of 14 P.2d, said: ‘If the driver of the stage did see the Dodge and Ford cars standing on the highway when he came in view of them, he was guilty of negligence in not then applying his brakes * * *.’

In Boynton v. Richfield, 117 Cal.App. 699, 700, 4 P.2d 614, judgment on directed verdict was reversed, the court saying ‘The precautionary measure of stopping, defendants did not take, and as a result the accident was not avoided.’

Respondent contends that the record discloses substantial conflicts on the issue of defendant's negligence in the instant action in the following particulars: (1) The testimony of the bus driver and that given by Jack Ballard, plaintiff's son, ‘created a conflict as to whether the driver swung out to miss the parked car or hit it while driving straight ahead’; (2) the testimony of the driver that he ‘was traveling approximately 35 miles an hour’ conflicts with the testimony of Jack Ballard that ‘we was going along at a speed, I would say, of about 45 when we hit * * *’; (3) the printed reports of the accident filled in and signed by Jack and Raymond Rallard at the request of the driver at the time of the accident in which they respectively answer the question ‘Who do you consider to blame for accident?’ as follows: ‘Car in road’ and ‘The car that was parked on the highway’; and (4) the following testimony of the bus driver during redirect examination: ‘Q. Mr. Hobert, after you had discovered the car in the position it was in, that is, the car that was parked, did you do everything that was in your power to miss that car? A. I did.’

The mere statement by the bus driver that he ‘did everything’ in his power ‘to miss that car’ (the fourth asserted conflict) amounts only to a mere conclusion on his part and certainly does not create a real or substantial conflict with the testimony of such driver wherein, when asked the question, ‘You didn't make any effort to slow down; just turned out and kept on going?’ he answered, ‘Yes,’ and again, when asked the question, ‘And you cut too short, is that it?’ he answered, ‘I didn't cut enough to miss it.’ When asked, ‘That is right, you didn't cut enough to miss it, and you had all that room, and there was no other traffic on the highway either behind you or coming toward you?’ he replied, ‘That is right.’ Nor does the foregoing claim of the bus driver that he ‘did everything’ in his power ‘to miss that car’ overcome the other detailed and positive evidence heretofore narrated concerning the occurrence of the collision. It does not create a material conflict in the evidence within the meaning of the settled rule which would support a finding based thereon. Ventre v. Tiscornia, 23 Cal.App. 598, 604, 138 P. 954. More than a mere conflict of words is required to constitute a conflict of evidence. Fewel & Dawes, Inc. v. Pratt, 17 Cal.2d 85, 89, 109 P.2d 650. A real and substantial conflict is not created by evidence that is slight and tenuous.

The uncontroverted facts in the instant action evidence an accident which could not have happened except for the negligence of the bus driver and they are sufficient to show negligence as a matter of law regardless of the first and second claimed conflicts. Under the conditions here present, whether the bus was traveling 35 or 45 miles per hour, and whether the parked car was struck by the bus while traveling straight ahead or while swinging to the left, the driver, having seen the car standing on the highway when the bus was 100 feet away and not having reduced his speed or applied his brakes to more easily avoid it, was negligent.

In this action by a passenger against a common carrier we are not concerned with the negligence of parties other than defendant corporation. The negligence, if any, of the person who was responsible for the position of the car struck by the bus is not here in issue. The sole question is whether the bus driver was guilty of negligence would proximately contributed to the accident. Consequently we disregard the aforesaid third asserted conflict. Furthermore, the statements therein mentioned are mere conclusions of the declarant and posses no evidentiary value.

We are forced to conclude that in the instant action there is no appreciable, material or substantial conflict in the evidence on the issue of defendant's negligence, and that the care and skill, if any, allegedly exercised by the bus driver in his claimed attempt to avoid hitting the parked car falls so far short of that high degree of care and skill owed by defendant corporation to its paying passengers that there is no room for a reasonable divergence of opinion. The disregard by defendant's bus driver of the standard of conduct required of persons under the circumstances here present is so obvious that his negligence was established as a matter of law, because reasonable minds could draw from the evidence but one inference, and that points unerringly to the bus driver's negligence as the proximate cause of the injury to plaintiff.

Respondent's contention that there was a conflict in the evidence as to the extent of appellant's injuries is without merit, because there is no claim made that the damages awarded were excessive, and a reading of the record impresses us that the amount thereof could not be held to have been influenced by passion or prejudice.

All intendments are in favor of the validity of an order granting a new trial and that it was properly made. Therefore, even though it cannot be sustained on the ground specified therein, if it was proper on any of the other grounds upon which the motion was made it will not be reversed on appeal. Although the motion herein was predicated upon twelve grounds, the only one other than the foregoing urged in the trial court or presented on appeal is that the court erred in excluding the testimony of Dr. Alvin Gerty, a witness produced on behalf of the defendant. In that regard, the record reflects that after he had been qualified, but before he gave any evidence of or concerning plaintiff and her injuries, the doctor stated to the court, ‘I don't believe, in all fairness to the patient, that I have the right to communicate information that she consulted me about,’ to which the court replied, ‘You may stand on the privilege if you so desire.’ Thereupon the following ensued:

‘The Witness: I don't believe that I should testify in this case myself, for the patient consulted me. I gave her my opinion, if she justifiably tells here what she thinks is right to say, and I told her about her case. That is up to her.

‘The Court: Does the plaintiff waive the privilege?

‘Mr. Coombs (attorney for plaintiff): No, we do not, your Honor.

‘The Court: You may stand on your privilege, if you so desire, Doctor.’

Thereupon the court sustained objections to any question being asked the witness concerning his consultation with plaintiff as a patient, and his diagnosis of or treatment prescribed for her. If the proffered testimony was material, the ruling was clearly erroneous. Subdivision 4 of section 1881 of the Code of Civil Procedure, which has to do with privileged communications between physician and patient, clearly and specifically provides ‘that where any person brings an action to recover damages for personal injuries, such action shall be deemed to constitute a consent by the person bringing such action that any physician who has prescribed for or treated said person and whose testimony is material in said action shall testify.’

However, the foregoing provisions of the statute provide that the plaintiff who institutes an action such as the instant one shall thereby be deemed to have waived the privilege as to any physician who has prescribed for or treated such plaintiff ‘and whose testimony is material in said action’. The trial court was not apprised, nor can we ascertain from the record, whether the testimony of this doctor was ‘material in said action.’ No offer of proof was made, nor did respondent at any time indicate to the court wherein the testimony of this witness was material. From the dctor's answers to qualifying questions we learn that since 1931 he ‘specialized in neurology and psychiatry,’ which is commonly and generally understood to mean that branch of medical science dealing with nervous and mental diseases. It also appears that this witness, in April, 1934, examined appellant at the request of her physician, Dr. Robert S. Ward, who testified at considerable length during the trial, both on direct and cross-examination. But nowhere in the testimony of Dr. Ward was he interrogated concerning his reference of appellant to Dr. Gerty for examination. Dr. Ward was questioned concerning his reference of appellant to two ear specialists because of her complaint that since the accident her sense of hearing was injuriously affected, and he was permitted to testify as to the findings and diagnosis of the ear specialists, but not one word was said to him regarding his reference of appellant to Dr. Gerty, a specialist in neurology and psychiatry. Dr. Ward was cross-examined as to appellant's sleeplessness, and nervous condition, as well as the anxiety she had about her injuries and he testified that he prescribed sedatives ‘for her nervous condition, and also for her pains'.

No citation of authority is necessary for the statement that one who complains of a ruling excluding proffered evidence must not only show that such ruling was erroneous, but must also assume the burden of showing resultant prejudice. Section 475 of the Code of Civil Procedure enjoins upon the trial court the duty at every stage of an action, which includes proceedings upon motion for a new trial, to ‘disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties'; and the same section is authority for the statement that there is no presumption that error is prejudicial, or that any injury was done if error is shown. Even though it be conceded that the ruling was erroneous, it cannot be conceded that the same was prejudicial unless the testimony was ‘material in said action’. In the absence of an offer of proof, or at least a statement to the court showing wherein the testimony of Dr. Gerty was material, we cannot assume, nor can we say, that the rights of respondent were prejudicially affected by the court's ruling. We have painstakingly read the reporter's transcript of the trial, and must confess that from a reading thereof we are unable to perceive wherein any testimony sought from this neurologist and psychiatrist was material to the issues framed by the pleadings or presented by the proof in this cause. At no time did respondent intimate to the court, nor is it pointed out on appeal, wherein the testimony of Dr. Gerty was ‘material in said action,’ nor wherein the ruling of the court prejudicially affected the substantial rights of respondent to a fair trial. Under such circumstances the order granting a new trial cannot be sustained on the ground that the court committed prejudicial error under the provisions of subdivision 4, section 1881 of the Code of Civil Procedure, in depriving respondent of the right to examine Dr. Gerty.

We have in mind the reluctance with which appellate courts reverse orders granting or refusing new trials, and we are not unmindful of the rule that the trial court, in passing upon such motion, is not bound by the findings of the jury if there is sufficient evidence to sustain a contrary finding; nevertheless, where, as in the case at bar, there is no substantial evidence upon which a contrary verdict or judgment court be founded, the order granting a new trial cannot be sustained upon appeal. The granting of the motion for a new trial under the circumstances presented by the record herein amounted to an abuse of discretion.

For the foregoing reasons, the order granting a new trial and vacating and setting aside the verdict and judgment, is reversed.

I dissent:

Whether a conflict exists in the evidence is beside the only issue presented by the appeal. That issue is whether there is substantial evidence to sustain the order. Either one of two conclusions may be drawn from the evidence, one, the manner of operating the vehicle amounted to negligence, and two, it did not. The jury reached one conclusion and the court the other. In my opinion, the evidence supports either, hence, the court's action finds support in the record and therefore, under the well established doctrine on appeal, must be upheld. The wisdom of the trial court's action may not be taken into account. And the action of the trial court in granting the motion cannot be assigned as an error occurring at the trial.

This is not an appeal from the judgment; consideration is limited to the grounds specified in the clerk's minutes of the order granting the new trial. Mazzota v. Los Angeles Ry. Co., 25 Cal.2d 165, 153 P.2d 338, and In re Green's Estate, 25 Cal.2d 535, 154 P.2d 692.

WHITE, Justice.

YORK, P. J., concurs.