
    [Civ. No. 1387.
    Second Appellate District.
    August 1, 1913.]
    MONT D. SHILLING, Respondent, v. WILLIAM DODGE, Appellant.
    New Trial—Duty op Trial Judge to Grant—Conflicting Evidence.— It is the duty of the judge of a trial court to grant a new trial whenever he is not satisfied with the verdict, if tried by a jury, or with the findings, if tried by the court; and he is not bound by the rule as to conflicting evidence, as is an appellate court.
    Id.—Discretion op Trial Judge—Presumption on Appeal.—The motion for a new trial is addressed to the sound discretion of the trial judge, and under a general order granting a new trial, the appellate court must assume that in granting it he was satisfied that the verdict was contrary to the weight of the evidence.
    APPEAL from an order of the Superior Court of Los Angeles County granting a motion for a new trial. John G. Covert, Judge presiding.
    The facts are stated in the opinion of the court.
    Edwin A. Meserve, and Shirley E. Meserve, for Appellant.
    Flint, Gray & Barker, for Respondent.
   SHAW, J.

Action for damages for personal injuries alleged to have been caused through the negligence of defendant.

The case was tried by a jury which rendered a verdict in favor of defendant. Judgment followed in accordance therewith. Plaintiff moved for a new trial upon the ground, among others, of insufficiency of evidence to justify the verdict. An order in general terms was made granting the motion, from which defendant prosecutes this appeal.

As we view the case under this general order it is unnecessary to consider other specifications of error than those of insufficiency of evidence to justify the verdict. (Churchill v. Flournoy, 127 Cal. 355, 59 Pac. 791].)

The facts briefly stated are: That defendant was driving an automobile in a southerly direction upon Fair Oaks Avenue in the city of Pasadena, closely following a few feet immediately back of another automobile driven in the same direction by Hr. Biasing. Upon seeing the plaintiff upon the west side of the street, Biasing asked plaintiff if he was going down town and receiving an affirmative answer stopped his ear, at which time plaintiff stepped into the street, intending to reach the left front seat by going around the back of Biasing’s ear. When he reached the rear thereof he was struck by defendant ’s car and crushed between that and the rear of the Biasing car, receiving the injuries upon which his claim for damages is based. Reference to' the specifications of error shows that the motion was based upon the claim that the evidence was insufficient to prove negligence on the part of plaintiff and that defendant was guilty of negligence, which negligence constituted the proximate cause of the injury to plaintiff. As usual in such cases, there was a conflict of evidence touching these questions, and it may be conceded that a verdict or finding of the court based thereon would not be disturbed by an appellate court, whether in favor of plaintiff or defendant. The trial court, however, is not bound by this rule. “It is the duty of the judge of the trial court to grant the new trial whenever he is not satisfied with the verdict, if tried by a jury, or with the findings, if tried by the court; and he is not bound by the rule as to conflicting evidence, as is this court.” (Condee v. Gyger, 126 Cal. 546, [59 Pac. 26]; Churchill v. Flournoy, 127 Cal. 355, [59 Pac. 791].) The motion for the new trial was addressed to the sound discretion of the trial judge, and under this general order, we must assume that in granting it he was satisfied that the verdict of the jury rendered in favor of defendant was contrary to the weight of the evidence. (See, also, Byxbee v. Dewey, 128 Cal. 322, [60 Pac. 847]; Estate of Motz, 136 Cal. 560, [69 Pac. 294].)

The appeal is without merit, and the order is affirmed.

Allen, P. J., and James, J., concurred.  