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District Court of Appeal, Fourth District, California.

Edward J. HAMMOND, Plaintiff and Appellant, v. BALBOA BAY CLUB, a corporation, et al., Defendants and Respondents.

Civ. 5547.

Decided: November 13, 1957

James D. Garibaldi and Warren J. Lane, Los Angeles, for appellant. Chase, Rotchford, Downen & Drukker, Donn B. Downen, Jr., and Otto M. Kaus, Los Angeles for respondent Balboa Bay Club.

Plaintiff and appellant, as guest of one of the members of defendant and respondent Balboa Bay Club, a corporation, suffered a permanent injury as a result of a dive from the diving board in defendant's pool when his body struck a swimmer in the water. It is plaintiff's claim that defendant was negligent in failing to maintain a lifeguard on duty and as a proximate result of said negligence he was injured. Defendant denied these allegations and alleged contributory negligence on the part of plaintiff and assumption of risk.

At the conclusion of plaintiff's case, a motion for nonsuit was denied. Later, a motion for a directed verdict for defendant was likewise denied. A jury verdict for $100,000 was returned against defendant. Defendant moved for judgment notwithstanding the verdict, reserving the right to move for a new trial if the motion was denied. Before the hearing on the motion defendant filed a notice of intention to move for a new trial and to set aside the verdict on all stated grounds, including insufficiency of the evidence. This motion was made and set for hearing at the same time as the motion for judgment notwithstanding the verdict. The court granted the motion for judgment notwithstanding the verdict with a minute notation: ‘On the ground of contributory negligence as a matter of law’. Then it considered the motion for new trial which was denied, but in such denial it ordered the ‘prior verdict vacated’ without indicating the grounds, and ‘plaintiff to take nothing by his action’. The judgment from which this appeal was taken recited that the judgment for defendant notwithstanding the verdict was granted, plaintiff should take nothing by reason of his complaint, and that defendant have judgment against the plaintiff.

Had the trial court believed plaintiff was guilty of contributory negligence barring a recovery it should have granted the motion for new trial on the grounds of insufficiency of the evidence to support the judgment, and no complex problem as is now presented would then have arisen, since a wide discretion is allowed trial courts in such determinations. The reasons for the rulings made are not apparent. It may well be that the trial judge was so convinced of the contributory negligence of the plaintiff, as a matter of law, that a judgment for defendant notwithstanding the verdict could not be reversed and that accordingly it would be unnecessary to grant a new trial on that same ground. It is argued, on the other hand, that although the trial judge may have believed that the evidence showed contributory negligence as a matter of law, still if it be found on appeal that he was in error, plaintiff should recover. The first claim appears to be more tenable, as reflected by the record. The reason assigned in the minutes by the trial judge for granting the judgment notwithstanding the verdict was not carried into the judgment. It does affirmatively appear he did not believe defendant should recover by reason of his contributory negligence. There was a great amount of evidence that plaintiff failed to look and take the necessary precaution to see the swimmer who was beneath him before he took the high dive into the water below. On the other hand, plaintiff testified he did go to the end of the diving board, made an observation, and then returned and proceeded to run and dive and then, for the first time, noticed the swimmer beneath him. Plaintiff's only claim of negligence of defendant is the absence of the regularly employed lifeguard, who had momentarily been called from the pool to set up some beach umbrellas near there for some other guests, and had he been present he could have notified plaintiff of the presence of this swimmer.

The guard testified he saw plaintiff and his party at the pool ‘acting loud’ and ‘splashing a lot’, and one was trying to be funnier than the other; that he had no fear for them because they appeared to be good swimmers and experienced divers; that he returned after the accident and heard plaintiff say several times: ‘It was my fault—I should not have been fooling around’. These statements were corroborated by other witnesses. A picture taken a little over an hour before the accident showed plaintiff and the others ‘with drinks in their hands'. There was testimony of expert divers and lifeguards that it is the duty of a diver to clear himself before he dives because a swimmer cannot see up but the diver can see down, and that divers are told to look for swimmers before leaping, and there is no duty on a lifeguard to warn a diver when a swimmer is in the water under the board and plainly visible to the diver.

Plaintiff testified he did not remember saying it was his fault but he may possibly have said it was an unfortunate thing and no one was to blame; that he never looked to see whether there was a lifeguard near the pool at the time and he was not concerned with his presence or absence.

While the evidence may well justify the trial judge's belief that plaintiff was guilty of contributory negligence, it cannot be said that he was guilty of contributory negligence as a matter of law or or that it was conclusively shown that plaintiff assumed the risk. The instant case was decided by the trial court before the decision in the case of Hawk v. City of Newport Beach, 46 Cal.2d 213, 293 P.2d 48. Under somewhat similar circumstances the court there said that there was nothing in the evidence which would justify the conclusion that the plaintiff was guilty of contributory negligence as a matter of law, and that the issue of contributory negligence was properly bubmitted to the jury for its determination. It also stated that the defense of assumption of risk as a matter or law was likewise unavailing. See, also, Anthony v. Hobbie, 25 Cal.2d 814, 155 P.2d 826; Murphy v. Atchison T. & S. F. Ry. Co., 139 Cal.App.2d 792, 294 P.2d 458; Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 265 P.2d 904; 19 Cal.Jur. pp. 697–699, sec. 119. It therefore appears that the evidence as to defendant's claimed negligence and the claimed contributory negligence of plaintiff was sufficient to go to the jury. Accordingly the judgment notwithstanding the verdict must be reversed. Lindsey v. De Vaux, 50 Cal.App.2d 445, 123 P.2d 144.

It is true that section 629 of the Code of Civil Procedure provides for the making of a motion for judgment notwithstanding the verdict or in lieu thereof a motion for new trial and, if made, the court shall pass upon both of them. It rather appears that the trial judge did not fully consider the merits of the motion for new trial and the effect of his denial of that motion in case the judgment notwithstanding the verdict was reversed. In this connection this feature of the motion for new trial must be considered. In addition to a request for a new trial defendant specifically requested that the court ‘vacate and set aside the verdict of the jury and the judgment rendered thereon’. The ruling on that motion, as noted by the minutes, and in sequence, was that the judgment notwithstanding the verdict was granted. The court then proceeded to hear the motion for new trial and denied the new trial but in doing so ordered ‘the prior verdict vacated * * * and plaintiff take nothing by his action’. As the record now stands, the court, on the motion for new trial, in effect set aside the verdict and judgment based thereon, and no appeal has been taken from that order. It therefore would most conclusively appear that the court did not intend that the jury's finding in respect to the absence of contributory negligence on the part of the plaintiff should stand, where the court, sitting as a thirteenth juror, believed that he was guilty of negligence as matter of law. It has been repeatedly held that a trial court should weigh the evidence and grant a new trial where it believes that the preponderance of the evidence is opposed to the jury's findings. Conwell v. Varian, 20 Cal.App. 521, 130 P. 23; 34 West's Cal.Dig., New Trial, 71, p. 429 et seq. It affirmatively appears that on the motion for new trial the trial judge did not intend that the jury's verdict against defendant should stand. It was specifically ordered vacated and set aside and it was ordered that plaintiff take nothing against the defendant. Even though it may have wrongfully granted a judgment for defendant notwithstanding the verdict, if the judge believed, from the evidence, that plaintiff was guilty of contributory negligence as a matter of law, barring recovery, as indicated, most certainly he did intend that the verdict should be set aside even though the question of plaintiff's contributory negligence was a matter of fact.

Under section 657 of the Code of Civil Procedure, on a hearing on a motion for new trial the ‘verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved.’ The aggrieved party made the motion for new trial. The trial court set aside the verdict and judgment based thereon and directed that plaintiff do not recover. No appeal was taken from this order made on the hearing of the motion. Assuming that the verdict and judgment were therefore properly set aside on said motion, the remaining portion of the order denying a new trial had no force or effect on the verdict or judgment and did not restore the verdict or judgment to its former status. Etchas v. Orena, 121 Cal. 270, 272, 53 P. 798; 36 Cal.Jur.2d p. 378, sec. 168.

In Eades v. Trowbridge, 143 Cal. 25, 76 P. 714, the court, on a motion for new trial, made an order setting aside the verdict but without expressly granting a new trial. The Supreme Court held that the trial court, by its action, impliedly granted a new trial and held that an appeal from such an order may be taken. The dilemma here presented by the trial court's ruling is difficult of solution. We prefer to conclude that by its ruling on the motion for new trial it did, by setting aside the judgment, in effect grant a new trial. There is sufficient justification in the record to warrant the action of the trial court even though insufficiency of the evidence may not have been directly stated as one of the grounds for granting it, where it was granted on the grounds stated in the notice of motion, which in themselves might indicate a new trial should be had.

Judgment for defendant notwithstanding the verdict is reversed. A new trial on the merits is authorized and should be had.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.