ed, then before you can find for the defendant it must appear further by a preponderance of the quoted sentence was irrelevant under the It may be, as suggested by appellant, that the evidence plaintiff was guilty of such contributory negligence as to excuse the defendant. This must appear to you from satisfactory evidence, or such inferences as you may legally draw from the evidence, and you must not speculate or guess, for your minds must be vinced."

con

The objection urged against instruction 19 is that it presented to the jury an irrelevant suggestion, and omitted to point out that, if the plaintiff's own negligence had placed her in a position of imminent danger, then the jury might find that she was guilty of contributory negligence, even though the exercise of ordinary prudence in her efforts to escape could not then avail to save her from injury.

evidence presented; but as a proposition of law the statement was correct, and we cannot see that it was likely to affect the verdict.

[8] The additional objection urged against instruction 25 is that it suggests the idea of tiff, and the thought that plaintiff might be degrees of negligence on the part of the plainguilty of some contributory negligence, and yet not of such contributory negligence as to idea of comparative negligence, whereas the excuse the defendant; that it presents the law is that even slight contributory negli gence on the part of plaintiff would bar her recovery. The answer is that the instruc

tion does not state the doctrine of comparative negligence, but only requires that it be established that the plaintiff was guilty of the defendant," and that other instructions "such contributory negligence as to excuse correctly and sufficiently inform the jury as to what constitutes contributory negligence, and that if the plaintiff was guilty of such negligence which contributed proximately to cause the injury, the verdict must be in favor

of the defendant.

The judgment and order are affirmed.

We concur: JAMES, J.; SHAW, J.

Appellant directs attention to the fact that the case of Schneider v. Market St. Ry. Co., 134 Cal. 483, 490, 66 Pac. 734, where the rule stated in instruction No. 25 was declared, was a case in which it appeared that the plaintiff's presence on the tracks was caused by reason of perturbation and panic induced by the negligence of the defendant, and not by his own negligence. There is force in the distinction thus pointed out by appellant. It is true, however, as suggested by counsel for respondent, that the instruction did not purport to say that a person in sudden peril by his own negligence is relieved from the imputation of contributory negligence, but only stated the principle that an unwise choice under such peril is not of itself contributory negligence, as the court said that the jury could not "on this account" find that the (District Court of Appeal, Third District, Caliplaintiff was guilty of contributory negligence. While the phraseology, standing alone, may be obscure, we think that respondent's explanation of it is supported by other instructions given to the jury, and which must be considered in connection with the instruction in question. The court very properly stated to the jury:

"You are not to take any one part of these instructions as expressing all the law, but are to consider the whole thereof in arriving at your

verdict."

And they were instructed that if they believed from the evidence that the plaintiff had failed to use such care as a person of ordinary prudence would have used under the same or similar circumstances as those then under investigation, and that such failure contributed proximately to or proximately caused the injury complained of, then plaintill could not recover.

[6, 7] There was no error in adding to this statement the last sentence of instruction No. 24, of which the defendant complains, and which is as follows:

"The mere fact that the plaintiff may have been careless and negligent is not of itself sufficient to excuse the defendant, if you find that her carelessness or negligence is remote in the chain of causation, and did not contribute proximately to cause the injury."

(32 Cal. App. 782) PACIFIC GAS & ELECTRIC CO. v. ROLLINS et al. (Civ. 1498.)

fornia. Feb. 10, 1917.)

128(5)-MOTION-SPECIFICA

1. NEW TRIAL
TION OF GROUNDS-STATUTE.

Under Code Civ. Proc. § 657, designating insufficiency of the evidence to justify the verdict as a ground of motion for new trial, and must designate in his notice of intention to section 659, providing that the moving party move for a new trial the grounds upon which the motion will be made, where defendants' notice set forth as one of the grounds of the motion "insufficiency of the evidence to justify the verdict," the motion for a new trial on the grounds set forth in the notice of intention, following which was a statement of the grounds set forth in the notice of intention, was sufficient.

[Ed. Note. For other cases, see New Trial, Cent. Dig. § 261.]

2.

NEW TRIAL 128(5) GROUNDS INSUFFICIENCY OF EVIDENCE SPECIFICATION OF PARTICULARS.

In eminent domain proceedings, where defendants moved for new trial on the ground of insufficiency of the evidence, and their specificaclaimed to be insufficient to justify the verdict tion of the particulars in which the evidence was directed attention to the particular elements of value constituting the basis upon which compensation should be fixed, each element being ing on such elements did not justify the jury's mentioned, and stated that the testimony bearconclusion that the property was of no greater value than that fixed by the jury, such specification of particulars was sufficient, since plaintiff could have experienced no difficulty in determining therefrom the particular facts as

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to

3. APPEAL AND ERROR 933(4) ·
ORDER GRANTING NEW TRIAL-GROUNDS.
Where the trial court, in granting a motion
for new trial, does not expressly limit the order
granting such motion to any particular ground
of those stated, it is the duty of the appellate
court to sustain it if it can be upheld on any
ground embodied in the notice of intention.
[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 3425, 3426, 3775.]

4. APPEAL AND ERROR PRESUMPTION.

933(4) — REVIEW

9. EVIDENCE 474(16)-COMPETENCY OF EX

PERTS-PARTIES-DETERMINATION.

Defendants, in an action in eminent domain, being otherwise qualified, were competent to testify as witnesses in their own behalf to the value of their property.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2215.1

Appeal from Superior Court, Placer County; J. E. Prewitt, Judge.

Action by the Pacific Gas & Electric Company, a corporation, against J. L. Rollins and others, as trustees of the Erie Mining Company, a defunct California corporation, and of its stockholders. From an order granting On appeal from an order granting defend- new trial, plaintiff appeals. Order affirmed. ants new trial in an action in eminent domain, where there was a wide variance between the Wm. B. Bosley and Thos. J. Straub, both witnesses for the respective parties on the ques- of San Francisco, and John M. Fulweiler, tion of value, the appellate court is author- of Auburn, for appellant. C. W. Kitts and ized to presume, in support of the order ap- C. W. Cross, both of San Francisco, and A. pealed from, that one of the reasons impelling

the trial court to allow motion was that the C. Lowell, of Auburn, for respondents.
evidence was insufficient to justify verdict;
that being a ground brought forward by defend-
ants.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3425, 3426, 3775.] 5. APPEAL AND ERROR 979(1) EMINENT DOMAIN 224-REVIEW-ORDER GRANTING NEW TRIAL-INSUFFICIENCY OF EVIDENCE. The granting or denying of a new trial on the ground that the evidence is insufficient to sustain the verdict, where there is a substantial conflict, rests so fully in the discretion of the trial court that its action is conclusive on appeal, unless there has been an abuse of discre

tion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3871, 3872; Eminent Domain, Cent. Dig. §§ 574–579.]

6. EMINENT DOMAIN 224-MOTION FOR INSUFFICIENCY OF EVIDENCE-DISCRETION OF TRIAL COUrt.

In an action in eminent domain, it was within the trial court's discretion, in considering the motion for new trial on the ground of insufficiency of the evidence to sustain the verdict, to determine whether the verdict, in so far as it concerned the value of the property, was justified, or reasonably in accord with the evidence on the question.

HART, J. This is an appeal from an order granting a new trial. The action is in eminent domain to condemn a right of way for the conveyance of water. The plaintiff is engaged in the business of storing, selling, and distributing water, for power, mining, irrigating, domestic, and other purposes, and particularly for supplying counties, cities, and towns, etc., in the state of California, and the inhabitants thereof, with water for all of said purposes. To carry out these objects, it has constructed and now maintains and operates canals, reservoirs, dams, ditches, fiumes, aqueducts, and all such other works, structures, machinery, and appliances necesSary for the collection, storage, and distribution of water for the purposes mentioned. The plaintiff, it appears, was, at the time of the commencement of this proceeding, constructing a large storage reservoir in the county of Nevada, called "Lake Spaulding Reservoir," through which the South Yuba river flows, and owns the right to divert and

[Ed. Note. For other cases, see Eminent Do- appropriate from said river at said reservoir main, Cent. Dig. §§ 574-579.]

7. EMINENT DOMAIN 224-ORDER GRANTING-ABUSE OF DISCRETION.

In an action in eminent domain against a mining company to condemn a right of way for water, where defendants' witnesses testified that the value of all defendants' properties was from $100,000 to $125,000, and plaintiff's witnesses testified that the properties were valueless for any purpose; the order of the trial court granting defendants a new trial for insufficiency of the evidence to sustain the verdict that the value of the property $4,000 was not an abuse of

discretion.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 574-579.]

8. APPEAL AND ERROR 979(2)-REVIEWORDER GRANTING NEW TRIAL.

The appellate court cannot weigh the testimony of witnesses in determining whether the trial court abused its discretion in granting new trial for insufficiency of the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3871.]

11,000 or more miner's inches of water, and
has near the outlet of said reservoir construct-
ed an aqueduct through which it proposes to
conduct and convey approximately 14,000
miner's inches, and, as soon as the right to
do so has been acquired, will discharge the
same into the channel of Bear river at the
lower end of said aqueduct, thence through
and along said channel of said Bear river to
the plaintiff's diverting dam. The right of
way adopted by the plaintiff for conveying
said water to said diverting dam includes the
channel of that portion of said Bear river
which is included between the lower end of
said aqueduct and said diverting dam, and
particularly that portion of the channel of
said river which crosses the defendants'
tract of land, of which a specific description
The property
is given in the complaint.
which the plaintiff herein seeks to condemn

To said motion the plaintiff interposed an objection upon the ground, among others, that no notice of said motion to amend had been given as provided by section 473 of the Code of Civil Procedure. The motion was denied by the court without prejudice to the right of the defendants to renew the same, and, against the objection of the plaintiff to any further delay, the court continued the further hearing of the motion for a new trial until the 18th day of October, 1915. On the 13th day of October, 1915, the defendants served upon the plaintiff their notice to amend the said statement in the manner and particulars above mentioned. Said notice was accompanied and supported by an affidavit. Upon hearing said motion as so pre

number of specifically enumerated objections by the plaintiff.

and appropriate to its purposes, above mentioned, is the right of way for conveying said water in and along that portion of the channel of the said Bear river which is included between the most northerly boundary line of defendants' said tract of land and the most southerly boundary thereof. It appears from the complaint that the defendant Erie Mining Company had, prior to the commencement of this action, failed to pay the state license tax imposed upon it for the year 1905, as provided by law (Stats. 1905, p. 493), and as a consequence had forfeited its charter to the state on the 14th day of December, 1905. Hence the action was brought against the directors of the defendant Erie Mining Company, as trustees of the corporation and its stockholders and members (Stats. 1907, p.sented, the court allowed the same over a 746), amendatory of the act of 1905 (Stats. 1905, pp. 493, 494). Upon the complaint, setting forth sufficient facts, and the denials of It is preliminarily objected by the appelthe answer, the cause was brought to issue lant: (1) That the motion for a new trial as and trial. The jury found that the market made did not set forth any grounds upon value of the right of way sought to be con- which the court could properly have granted demned was the sum of $4,000, and that the the motion. The argument in support of this damages which will be sustained by the de- proposition is that "the grounds as stated fendants on account of injury to the re- in the motion were too general and indefinite mainder of the tract of land owned by the to enable the court to know wherein the evidefendants, and of which the land sought to dence was insufficient to justify the verdict; be condemned is a part, by reason of the tak-* * that it was incumbent upon reing and the severing therefrom of the said spondents in making such motion to state right of way, would be $1,000. The court specifically the grounds of the motion or rethereafter caused to be entered what is call-fer to some paper on file wherein such ed in the record a "judgment." Within due grounds were specifically stated (citing Wiltime, the defendants served and filed a no-liams v. Hawley, 144 Cal. 97, 77 Pac. 762; tice of intention to move for a new trial upon the following grounds: (1) Insufficiency of the evidence to justify the verdict of the jury; (2) that the verdict was and is contrary to and against the evidence; (3) that the verdict is contrary to law; (4) errors of law occurring at the trial and excepted to by defendants. The said notice stated that "said motion will be made upon a statement of the case," etc. The statement on the said motion was within due time prepared and served, and, on the 14th day of September, 1915, the court duly allowed and settled the same. On the 11th day of October, 1915, the matter of the motion for a new trial on the statement as allowed and settled was called for hearing. At said time, the defendants presented a motion for the amendment of said statement and specification of errors so as to make it appear in the appropriate place therein that "no findings were made or filed by the court, and that findings were not waived by defendants," and to add to the assignments of errors the following:

Hayne, New Trial and Appeal, sec. 164); that respondents did not state specifically the grounds upon which they relied, nor did they refer to any paper on file in the case wherein such grounds were stated." (2) That the specification of the insufficiency of the evidence to justify the verdict is insufficient, in that it is too general and fails to point out the particulars in which the evidence does not justify the verdict.

[1] As to the point first suggested, section 657 of the Code of Civil Procedure designates the grounds upon which a motion for a new trial may be made. Among the grounds so specified is that of the insufficiency of the evidence to justify the verdict or other decision. Section 659 provides that the moving party must designate in his notice of intention to move for a new trial the grounds upon which the motion will be made. This latter provision obviously refers to the grounds upon which a new trial may be allowed as specified in section 657, and contemplates that the grounds designated shall "That the judgment herein entered is contrary go no further than to specify them in the noto law in this: That the court did not file its tice of intention in the general language of findings of fact upon the issues presented in the the last-mentioned section. This is precisecase other than the issue of compensation, as

required by law; that the final order or decree ly what was done by the respondents in this of condemnation herein entered is contrary to case. The statement as settled and allowed law in this: That the court did not file its contains the notice of intention, in which is findings of fact upon the issues presented in the case other than the issue of compensation, set forth, as one of the grounds of the moas required by law." tion, "insufficiency of the evidence to justify

the verdict," which is the exact language of subdivision 6 of said section 657. The statement further contains the following statement:

"Thereupon the matter of motion for a new trial being before the court, defendants made the following motion: The defendants move the court for a new trial of this action upon the grounds set forth in the notice of intention, to wit"

-following which is a statement of the grounds set forth in the notice of intention.

The above motion was sufficient in all respects to meet the requirements of the law where, as here, the motion is, as the notice of intention here stated would be done, supported by a statement of the case. There is nothing said in Williams v. Hawley, supra, from which it may be implied that the court intended to hold or suggest that the motion as made here is not sufficient to warrant the trial court in considering and acting upon it. In that case the moving party, in making his motion, referred to the notice of intention

theretofore served and filed, but, in making
up the bill of exceptions prepared and settled
for the support of his motion, failed to in-
clude therein said notice of intention. It was
therefore very properly held that, not being
a part of the record, although inserted in the
transcript, the notice of intention could not
be examined by the court for a statement of
the grounds of the motion. The court in
that case did say, however, that:
"It is not necessary, *
* for the appel-
lant in making the motion to state the grounds
at length. He must, in some way, inform the
court what are the grounds of the motion, but
this may be done as well by reference to some
paper on file in the action, in which the grounds
are stated, as by word of mouth."

See, also, Taylor v. Northern Elec. Railway
Co., 26 Cal. App. 765, 770, 148 Pac. 543.

which it was thus stated that the evidence was not sufficient to justify the verdict upon the question of value, and this is all that is needful in specifications. Indeed, the plaintiff seems to have perceived and understood the particulars to which the specification referred, as the statement contains a fairly complete statement of the testimony addressed to the several elements of value.

The rule respecting and requiring specifications of particulars, etc., is now much more liberally viewed and applied than in our earlier juridical history. Formerly the rule was very strict, and even a mere informal statement in such specifications might, and often did, operate to bring about a refusal by the courts to consider the points thus attempted to be pointed out. Many decisions have been from time to time made upon the subject, and finally the Supreme Court, in American, etc., Co. v. Packer, 130 Cal. 459, 62 Pac. 744, held that:

"Whenever there is a reasonably successful effort to state 'the particulars,' and they are such as may have been sufficient to inform the opposing counsel and the court of the grounds, k this court ought not to refuse to consider the case on appeal."

*

*

See also, Drathman v. Cohen, 139 Cal. 310, 73 Pac. 181; 1 Hayne on New Trial and Appeal (Rev. Ed.) p. 755.

Taking up now a consideration of the merits of this appeal, we first remark that there seems to be much force in the point made by the appellant that the document purporting to be and characterized in the record as the "judgment" (the preliminary or interlocutory judgment) not only constituted such a judgment, without which, manifestly, the court would have no authority or jurisdiction to make the final order of condemnation, but also embraces findings of all the essential facts and conclusions of law. But, assuming this to be true, we need not, in view of the conclusion arrived at herein upon another consideration presented here, stop to inquire whether the document referred to might le

law, and judgment, or whether on an appeal involving the merits of the controversy, the cause would be reversed for the sole and single reason that the findings of fact and conclusions of law are not separately stated, as required by section 633 of the Code of Civil Procedure, which is expressly made applicable to proceedings in condemnation by section 1256 of said Code. It might be that the provisions of section 41⁄2 of article 6 of the Constitution would apply in such case. But, as stated, it is not necessary to consider this proposition. We think the cause may be disposed of on another ground.

[2] The specification of the particulars in which the evidence is claimed to be insufficient to justify the verdict, so far as compensation or value is concerned, while perhaps not as specific as it might have been, is, nevertheless, sufficient. By said specifica-gally stand for the findings, conclusions of tion (after the statement that the verdict, so far as it involved a decision of the question of the value of the property sought to be condemned, is not justified by the evidence) attention is directed to the particular elements of value which constitute the basis upon which compensation of the defendants for the taking of their property should be fixed, each such element being mentioned, and it states in effect that the testimony bearing upon such elements does not justify the conclusion of the jury that the property involved was of no greater value than that fixed by the jury. This was sufficient to point the particular evidence thus referred to, and the particulars in which it was claimed that it was not sufficient to justify the verdict. The plaintiff could have experienced no difficulty in determining from

It has been shown that one of the grounds upon which the motion for a new trial was based and pressed was that the evidence was insufficient to justify the verdict. The order granting the motion is in the following lan

"The motion of the defendants in the above- er purposes, and the availability of the propentitled case for a new trial coming on regularly erties of the company for the development to be heard upon the bill of exceptions, the notice of intention to move for a new trial and the and use of water for such purposes, and that judgment roll, and the motion having been made the mine itself contained large deposits of upon all the grounds specified in said notice of rich and paying gravel, expressed the opinion intention and duly argued and submitted, and that the value of all said properties was from the court having considered the same, the premises considered, it is ordered that the said motion $100,000 to $125,000 for all the purposes to for a new trial be, and the same is hereby grant- which they may properly and profitably be ed." adapted; that the right of way sought by the plaintiff herein, if allowed, would com

[3] It will at once be observed that the order granting the new trial does not in-pletely destroy and render valueless all the dicate the particular ground, or grounds, of the several set forth in the notice of intention upon which it was made, and it is the settled rule in California that where the trial court, in granting a motion for a new trial, does not expressly limit the order granting such motion to any particular ground of those stated, it is the duty of the appellate court to sustain it, if it can be upheld upon any ground embodied in the notice of intention. Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481, 18 L. R. A. 124; Newman v. Lossing, 141 Cal. 175, 74 Pac. 761; Bouchard v. Abrahamsen, 4 Cal. App. 430, 88 Pac. 383; Briggs v. Hall, 20 Cal. App. 372, 129 Pac. 288; SheaBocqueraz Co. v. Hartman, 20 Cal. App. 534, 129 Pac. 807.