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ed, then before you can find for the defendant It may be, as suggested by appellant, that it must appear further by a preponderance of the quoted sentence was irrelevant under the the evidence plaintiff was guilty of such contributory negligence as to excuse the defendant. evidence presented; but as a proposition of This must appear to you from satisfactory evi-law the statement was correct, and we candence, or such inferences as you may legally not see that it was likely to affect the verdraw from the evidence, and you must not spec

dict. ulate or guess, for your minds must be convinced."

[8] The additional objection urged against The objection urged against instruction 19 degrees of negligence on the part of the plain

instruction 25 is that it suggests the idea of is that it presented to the jury an irrele- tiff, and the thought that plaintiff might be vant suggestion, and omitted to point out that, if the plaintiff's own negligence had guilty of some contributory negligence, and placed her in a position of imminent danger, yet not of such contributory negligence as to

excuse the defendant; that it presents the then the jury might find that she was guilty idea of comparative negligence, whereas the of contributory negligence, even though the

law is that even slight contributory negliexercise of ordinary prudence in her efforts to escape could not then avail to save her gence on the part of plaintiff would bar her

recovery. The answer is that the instrucfrom injury.

tion does not state the doctrine of comparaAppellant directs attention to the fact that tive negligence, but only requires that it be the case of Schneider v. Market St. Ry. Co., established that the plaintiff was guilty of 134 Cal. 483, 490, 66 Pac. 734, where the rule

"such contributory negligence as to excuse stated in instruction No. 25 was declared, the defendant," and that other instructions was a case in which it appeared that the

correctly and sufficiently inform the jury as plaintiff's presence on the tracks was caused by reason of perturbation and panic in- to what constitutes contributory negligence, duced by the negligence of the defendant, and and that if the plaintiff was guilty of such

negligence which contributed proximately to not by his own negligence. There is force in the distinction thus pointed out by appellant. cause the injury, the verdict must be in favor

of the defendant. It is true, however, as suggested by counsel

The judgment and order are affirmed. for respondent, that the instruction did not purport to say that a person in sudden peril

We concur: JAMES, J.; SHAW, J. by his own negligence is relieved from the imputation of contributory negligence, but only stated the principle that an unwise choice

(32 Cal. App. 782) under such peril is not of itself contributory PACIFIC GAS & ELECTRIC CO. V. ROLnegligence, as the court said that the jury

LINS et al. (Civ. 1498.) could not "on this account” find that the (District Court of Appeal, Third District, Caliplaintiff was guilty of contributory negli

fornia. Feb. 10, 1917.) gence. While the phraseology, standing

1. NEW TRIAL 128(5)-MOTION-SPECIFICAalone, may be obscure, we think that respond

TION OF GROUNDS-STATUTE. ent's explanation of it is supported by other Under Code Civ. Proc. 8 657, designating instructions given to the jury, and which insufficiency of the evidence to justify the vermust be considered in connection with the dict as a ground of motion for new trial, and

section 659, providing that the moving party instruction in question. The court very prop- must designate in his notice of intention to erly stated tɔ the jury:

move for a new trial the grounds upon which the "You are not to take any one part of these motion will be made, where defendants' notice instructions as expressing all the law, but are to set forth as one of the grounds of the motion consider the whole thereof in arriving at your "insufficiency of the evidence to justify the verFerdict."

dict," the motion for a new trial on the grounds

set forth in the notice of intention, following And they were instructed that if they be which was a statement of the grounds set forth lieved from the evidence that the plaintiff in the notice of intention, was sufficient. had failed to use such care as a person of or

[Ed. Note.-For other cases, see New Trial, dinary prudence would have used under the Cent. Dig. § 261.] same or similar circumstances as those then 2. NEW TRIAL Cw128(5) — GROUNDS — INSUF

FICIENCY OF EVIDENCE SPECIFICATION OF under investigation, and that such failure

PARTICULARS. contributed proximately to or proximately In eminent domain proceedings, where decaused the injury complained of, then plain- fendants moved for new trial on the ground of tint could not recover.

insufficiency of the evidence, and their specifica

tion of the particulars in which the evidence was [6,7] There was no error in adding to this claimed to be insufficient to justify the verdict statement thc last sentence of instruction No. directed attention to the particular elements 24, of which the defendant complains, and of value constituting the basis upon which comwhich is as follows:

pensation should be fixed, each element being

mentioned, and stated that the testimony bear"The mere fact that the plaintiff may have ing on such elements did not justify the jury's been careless and negligent is not of itself suf- conclusion that the property was of no greater ficient to excuse the defendant, if you find that value than that fixed by the jury, such specifiher carelessness or negligence is remote in the cation of particulars was sufficient, since plainchain of causation, and did not contribute prox- tiff could have experienced no difficulty in deterimately to cause the injury."

mining therefrom the particular facts as For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to

which it stated the evidence was not sufficient to 9. EVIDENCE 474(16)-COMPETENCY OF Exjustify the verdict on the question of value, PERTS-PARTIES-DETERMINATION. which was all that was necessary.

Defendants, in an action in eminent domain, [Ed. Note.-For other cases, see New Trial, being otherwise qualified, were competent to Cent. Dig. § 261.)

testify as witnesses in their own behalf to the

value of their property. 3. APPEAL AND ERROR Omw933(4) — REVIEW ORDER GRANTING NEW TRIAL-GROUNDS.

[Ed. Note.-For other cases, see Evidence, Where the trial court, in granting a motion Cent. Dig. $ 2215.7 for new trial, does not expressly limit the order granting such motion to any particular ground

Appeal from Superior Court, Placer Counof those stated, it is the duty of the appellate ty; J. E. Prewitt, Judge. court to sustain it if it can be upheld on any Action by the Pacific Gas & Electric Comground embodied in the notice of intention.

[Ed. Note.--For other cases, see Appeal and pany, a corporation, against J. L. Rollins and Error, Cent, Dig. $8 3425, 3426, 3775.)

others, as trustees of the Erie Mining Com

pany, a defunct California corporation, and 4. APPEAL AND ERROR Om933(4) - REVIEW PRESUMPTION.

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

HART, J. This is an appeal from an order ants.

[Ed. Note.--For other cases, see Appeal and granting a new trial. The action is in emi. Error, Cent. Dig. SS3425, 3426, 3775.]

nent domain to condemn a right of way for 5. APPEAL AND ERROR ww979(1) EMINENT

the conveyance of water. The plaintiff is enDOMAIN OW224_REVIEW-ORDER GRANTING gaged in the business of storing, selling, and NEW TRIAL-INSUFFICIENCY OF EVIDENCE. distributing water, for power, mining, irri

The granting or denying of a new trial an gating, domestic, and other purposes, and the ground that the evidence is insufficient to sustain the verdict, where there is a substantial particularly for supplying counties, cities, conflict, rests so fully in the discretion of the and towns, etc., in the state of California, trial court that its action is conclusive on ap- and the inhabitants thereof, with water for peal, unless there has been an abuse of discre- all of said purposes. To carry out these obtion.

[Ed. Note.-For other cases, see Appeal and jects, it has constructed and now maintains Error, Cent. Dig. $$_3871, 3872; Eminent Do- and operates canals, reservoirs, dams, ditches, main, Cent. Dig. $$ 574-579.)

fiumes, aqueducts, and all such other works, 6. EMINENT DOMAIN 224-MOTION FOR

structures, machinery, and appliances necesINSUFFICIENCY OF EVIDENCE--DISCRETION OF sary for the collection, storage, and distribuTRIAL COURT.

tion of water for the purposes mentioned. In an action in eminent domain, it was The plaintilf

, it appears, was, at the time of within the trial court's discretion, in considering the motion for new trial on the ground of the commencement of this proceeding, coninsufficiency of the evidence to sustain the ver- structing a large storage reservoir in the dict, to determine whether the verdict, in so far county of Nevada, called “Lake Spaulding as it concerned the value of the property, was justified, or reasonably in accord with the evi- Reservoir," through which the South Yuba dence on the question.

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. 88 574-579.]

11,000 or more miner's inches of water, and 7. EMINENT DOMAIN On 224-ORDER GRANT- has near the outlet of said reservoir constructING-ABUSE OF DISCRETION. In an action in eminent domain against a conduct and convey approximately 14,000

ed an aqueduct through which it proposes to mining company to condemn a right of way for water, where defendants' witnesses testified that miner's inches, and, as soon as the right to the value of all defendants' properties was from) do so has been acquired, will discharge the $100,000 to $125,000, and plaintiff's witnesses same into the channel of Bear river at the testified that the properties were valueless for any purpose; the order of the trial court grant- lower end of said aqueduct, thence through ing defendants a new trial for insufficiency of and along said channel of said Bear river to the evidence to sustain the verdict that the val- the plaintiff's diverting dam. The right of ue of the property $1,000 was not an abuse of way adopted by the plaintiff for conveying discretion. [Ed. Note,-For other cases, see Eminent Do

said water to said diverting dam includes the main, Cent Dig. $8 574-579.]

channel of that portion of said Bear river

which is included between the lower end of 8. APPEAL AND ERROR Ow979(2)-REVIEWORDER GRANTING NEW TRIAL.

said aqueduct and said diverting dam, and The appellate court cannot weigh the testi- particularly that portion of the channel of mony of witnesses in determining whether the said river which crosses the defendants' trial court abused its discretion in granting new tract of land, of which a specific description trial for insufficiency of the evidence, [Ed. Note. For other cases, see Appeal and

is given in the complaint. The property Error, Cent. Dig. § 3871.)

which the plaintiff herein seeks to condemn For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and appropriate to its purposes, above men- 1 To said motion the plaintiff interposed an tioned, is the right of way for conveying said objection upon the ground, among others, water in and along that portion of the chan- that no notice of said motion to amend had nel of the said Bear river which is included been given as provided by section 473 of the between the most northerly boundary line of Code of Civil Procedure. The motion was dedefendants' said tract of land and the most nied by the court without prejudice to the southerly boundary thereof. It appears from right of the defendants to renew the same, the complaint that the defendant Erie Mining and, against the objection of the plaintiff to Company had, prior to the commencement of any further delay, the court continued the this action, failed to pay the state license further hearing of the motion for a new trial tas imposed upon it for the year 1905, as until the 18th day of October, 1915. On the provided by law (Stats. 1905, p. 493), and as 13th day of October, 1915, the defendants a consequence had forfeited its charter to served upon the plaintiff their notice to the state on the 14th day of December, 1905. amend the said statement in the manner and Henc e the action was brought against the particulars above mentioned. Said notice directors of the defendant Erie Mining Com-was accompanied and supported by an afpany, as trustees of the corporation and its | fidavit. Upon hearing said motion as so prestockholders and members (Stats. 1907, p. sented, the court allowed the same over a 746), amendatory of the act of 1905 (Stats. number of specifically enumerated objections 1905, pp. 493, 494). Upon the complaint, set- by the plaintiff. ting 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 up- Hayne, New Trial and Appeal, sec. 164); that on the following grounds: (1) Insufficiency respondents did not state specifically the of the evidence to justify the verdict of the grounds upon which they relied, nor did they jury; (2) that the verdict was and is con- refer to any paper on file in the case wheretrary to and against the evidence; (3) that in such grounds were stated.” (2) That the the verdict is contrary to law; (4) errors of specification of the insufficiency of the evilaw occurring at the trial and excepted to dence to justify the verdict is insufficient, in by defendants. The said notice stated that that it is too general and fails to point out "said motion will be made upon a statement the particulars in which the evidence does of the case," etc. The statement on the said not justify the verdict. motion was within due time prepared and [1] As to the point first suggested, section served, and, on the 14th day of September, 657 of the Code of Civil Procedure designates 1915, the court duly allowed and settled the the grounds upon which a motion for a new same. On the 11th day of October, 1915, the trial may be made. Among the grounds so matter of the motion for a new trial on the specified is that of the insufficiency of the statement as allowed and settled was called evidence to justify the verdict or other decifor hearing. At said time, the defendants sion. Section 659 provides that the moving presented a motion for the amendment of party must designate in his notice of intensaid statement and specification of errors so tion to move for a new trial the grounds upas to make it appear in the appropriate place on which the motion will be made. This therein that "no findings were made or filed latter provision obviously refers to the by the court, and that findings were not grounds upon which a new trial may be alwaived by defendants," and to add to the as lowed as specified in section 657, and consignments of errors the following:

templates 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 which it was thus stated that the evidence subdivision 6 of said section 657. The state-was not sufficient to justify the verdict upon ment further contains the following state- the question of value, and this is all that is ment:

needful in specifications. Indeed, the plain“Thereupon the matter of motion for a new tiff seems to have perceived and understood trial being before the court, defendants made the the particulars to which the specification refollowing motion: court for a new trial of this action upon the ferred, as the statement contains a fairly grounds set forth in the notice of intention, to complete statement of the testimony adwit"

dressed to the several elements of value. -following which is a statement of the

The rule respecting and requiring specificagrounds set forth in the notice of intention. tions of particulars, etc., is now much more

The above motion was sufficient in all re-liberally viewed and applied than in our spects to meet the requirements of the law earlier juridical history. Formerly the rule where, as here, the motion is, as the notice was very strict, and even a mere informal of intention here stated would be done, sup- statement in such specifications might, and ported by a statement of the case. There is often did, operate to bring about a refusal nothing said in Williams v. Hawley, supra, by the courts to consider the points thus at. from which it may be implied that the court tempted to be pointed out. Many decisions intended to hold or suggest that the motion have been from time to time made upon the as made here is not sufficient to warrant the subject, and finally the Supreme Court, in trial court in considering and acting upon it. American, etc., Co. v. Packer, 130 Cal. 459, In that case the moving party, in making his 62 Pac. 744, held that: motion, referred to the notice of intention

“Whenever there is a reasonably successful theretofore served and filed, but, in making effort to state the particulars,' and they are such

as may have been sufficient to inform the opup the bill of exceptions prepared and settled posing counsel and the court of the grounds, for the support of his motion, failed to in- *

this court ought not to refuse to clude therein said notice of intention. It was consider the case on appeal." therefore very properly held that, not being

See also, Drathman v. Cohen, 139 Cal. 310, a part of the record, although inserted in the 73 Pac. 181; 1 Hayne on New Trial and Aptranscript, the notice of intention could not peal (Rev. Ed.) p. 755. be examined by the court for a statement of

Taking up now a consideration of the mer. the grounds of the motion. The court in its of this appeal, we first remark that there that case did say, however, that:

seems to be much force in the point made "It is not necessary,

for the appel- by the appellant that the document purportlant in making the motion to state the grounds at length. He must, in some way, inform the ing to be and characterized in the record as court what are the grounds of the motion, but the “judgment" (the preliminary or interthis may be done as well by reference to some locutory judgment) not only constituted such paper on file in the action, in which the grounds a judgment, without which, manifestly, the are stated, as by word of mouth."

court would have no authority or jurisdiction See, also, Taylor v. Northern Elec. Railway to make the final order of condemnation, but Co., 26 Cal. App. 765, 770, 148 Pac. 543. also embraces findings of all the essential

[2] The specification of the particulars in facts and conclusions of law. But, assuming which the evidence is claimed to be insuf- this to be true, we need not, in view of the ficient to justify the verdict, so far as com- conclusion arrived at herein upon another pensation or value is concerned, while per consideration presented here, stop to inquire haps not as specific as it might have been, whether the document referred to might leis, nevertheless, sufficient. By said specifica-gally stand for the findings, conclusions of tion (after the statement that the verdict, so law, and judgment, or whether on an appeal far as it involved a decision of the question involving the merits of the controversy, the of the value of the property sought to be cause would be reversed for the sole and condemned, is not justified by the evidence) single reason that the findings of fact and attention is directed to the particular ele conclusions of law are not separately stated, ments of value which constitute the basis as required by section 633 of the Code of upon which compensation of the defendants Civil Procedure, which is expressly made apfor the taking of their property should be plicable to proceedings in condemnation by fixed, each such element being mentioned, section 1256 of said Code. It might be that and it states in effect that the testimony the provisions of section 442 of article 6 of bearing upon such elements does not justify the Constitution would apply in such case. the conclusion of the jury that the property But, as stated, it is not necessary to consider involved was of no greater value than that this proposition. We think the cause may be fixed by the jury. This was suflicient to disposed of on another ground. point the particular evidence thus referred It has been shown that one of the grounds to, and the particulars in which it was upon which the motion for a new trial was claimed that it was not sufficient to justify based and pressed was that the evidence was the verdict. The plaintiff could have ex- | insufficient to justify the verdict. The order perienced no difficulty in determining from granting the motion is in the following lanthe specification the particular facts as to Iguage:

"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 [3] It will at once be observed that the the plaintiff herein, if allowed, would comorder granting the new trial does not in- pletely destroy and render valueless all the dicate the particular ground, or grounds, of properites of said Erie Company and the dethe several set forth in the notice of inten- fendants, and render them worthless for any tion upon which it was made, and it is the practical mining or water power purpose, settled rule in California that where the trial to which they are alone adapted. (2) That court, in granting a motion for a new trial, the witnesses for the plaintiff, having first does not expressly limit the order granting shown themselves to be experts upon mining such motion to any particular ground of and kindred subjects, including the developthose stated, it is the duty of the appellate ment and conservation of water for power court to sustain it, if it can be upheld upon purposes, and that they were familiar with any ground embodied in the notice of inten- the properties of the Erie Company, and tion. Kauffman v. Maier, 94 Cal. 269, 29 Pac. knew their value for any purpose to which 481, 18 L, R. A. 124; Newman v. Lossing, 141 they might with profit be put, testified that Cal. 175, 74 Pac. 761 ; Bouchard v. Abraham- said properties were absolutely valueless for sen, 4 Cal. App. 430, 88 Pac. 383; Briggs v. any purpose. Hall, 20 Cal. App. 372, 129 Pac. 288; Shea Thus it will be observed that, as stated, Bocqueraz Co. v. Hartman, 20 Cal. App. 534, there is a wide diversity of opinion between 129 Pac. 807.

the witnesses as to the value of the property [4] There is in this case a pronounced con- sought to be taken. In fact, it has no value flict in the evidence upon the question of whatever, according to the plaintiff's witthe value of the property sought to be con nesses. But, that it has some value is evidemned. Indeed, there is such a wide vari. denced by the verdict, and, although it is not ance between the witnesses for the respective so made to appear in the record, it is stated parties upon the question of value that it may in the brief of counsel for the plaintiff that properly be assumed, and, in fact, we are au- the jury viewed and inspected the property thorized to presume, in support of the order sought to be condemned. appealed from, that one of the reasons im

[6] But, at all events, it was, as above pelling the trial court to allow the motion for pointed out, entirely within the discretion of a new trial was that the evidence was insuf- the trial court, in considering the motion for ficient to justify the verdict. We may dis

a new trial to determine whether the verdict, pose of the case upon this presumption, and, in so far as it concerned the value of the therefore, consideration of other grounds and property sought to be appropriated, was juspoints involving an attack upon certain rul- tified, or reasonably in accord with the eviings of the court may be waived.

dence upon that question. It is a well-established rule that:

[7] The order granting the motion is evi"'The granting or denying a new trial on the dence of the opinion of the court that the ground that the evidence is insufficient to justify verdict as rendered was not, in respect of the verdict, where there is a substantial confict in the evidence, rests so fully in the discre- value, justified, and, as it cannot upon the tion of the trial court that its action is con- record as we must view it justly be said that clusive upon this court, unless it appears that the court, in granting the motion on that Domico v. Casassa, 101 Cal. 413, 35 Pac. 1024; ground, abused its discretion, it cannot be Warner v. Thomas, etc., Works, 105 Cal. 411) | disturbed. 38 Pac. 960; Eidinger v. Sigwart, 13 Cal. App. [8] We have not, in considering this rec667, 676, 110 Pac. 521.

ord, overlooked the analytical examination See, also, Bjorman v. Ft. Bragg R. R. Co., of the testimony presented by the defendants 92 Cal. 500, 28 Pac, 591; Cole v. Wilcox, 99 by counsel for the plaintiff in their briefs Cal. 549, 34 Pac. 114; Bledsoe v. Decrow, 132 and their argument following therefrom Cal. 312, 64 Pac. 397.

against the reliability of said testimony. But (5) We shall not undertake herein a detail this court cannot weigh the testimony of ed statement of the testimony upon the ques- witnesses. This was, obviously a matter ention of value. It is conceived to be sufficient tirely for the jury in the first instance and to say: (1) That the witnesses for the de- then for the court when considering the mofendants, having previously declared that tion for a new trial. The defendants apthey were familiar with the properties of the peared to have sufficiently qualified themErle Mining Company and were familiar selves to express opinions on the value of the with mining operations and the use and the property. This is all that this court need methods of the impounding of water for pow- | know, and whether the testimony given by

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