[Civ. No. 2643. Second Appellate District, Division One.-July 2, 1919.]

FRANK E. CLOHAN, Respondent, v. ALBERT P. KELSO, Appellant.

[1] NEW TRIAL-APPEAL-EVIDENCE-PRESUMPTION.-Where the evidence is such that it would have sufficiently supported findings in favor of the party against whom the decision was given, and the trial court grants a motion for a new trial upon various grounds, including that of insufficiency of evidence, without in terms excluding such ground in its order on the minutes, the appellate court must presume, in favor of such order, that the court changed its opinion as to the effect of the evidence, and reached a conclusion upon the hearing of the motion favorable to the party making the motion.

[2] ID. FINDINGS-PRESUMPTION.-On appeal from an order granting a new trial the presumption is against the findings and not in their favor.

[3] NEGLIGENCE-PERSONAL INJURIES TO PEDESTRIAN-SPEED OF AUTOMOBILE—EVIDENCE. In this action for damages for personal injuries received by the plaintiff through having been struck by an automobile driven by the defendant, the fact that the defendant approached the crossing in question at a speed of twenty-five miles per hour alongside of another automobile, also proceeding at the same or a greater rate of speed, while pedestrians, including the plaintiff, were crossing the street, was sufficient to support the conclusion of the trial court that the defendant was clearly negligent.

APPEAL from an order granting a new trial. Curtis D. Wilbur, Judge. Affirmed.

The facts are stated in the opinion of the court.

B. P. Gibbs, and Duke Stone for Appellant.

Geo. M. Harker for Respondent.

CONREY, P. J.-This was an action by the plaintiff against the defendant on account of the alleged negligence of the defendant in driving his automobile against the

3. Speed of automobile as negligence, notes, 25 L. R. A. (N. S.) 40; 38 L. R. A. (N. S.) 488; 51 L. R. A. (N. S.) 993.

plaintiff on or about June 30, 1914, at or near the intersection of West Twelfth Street and Flower Street in the city of Los Angeles; whereby the plaintiff received personal injuries. In answer to special interrogatories, the jury found that immediately preceding the collision the defendant was operating his automobile at the rate of twentyfive miles per hour, and that in the judgment of the jury such rate of speed was not negligent. A general verdict was rendered in favor of the defendant, who now appeals from an order granting a new trial.

One of the grounds upon which the motion for new trial was based was that the evidence is insufficient to justify the verdict of the jury that the defendant was free from negligence. Appellant contends that the verdict of the jury in his favor was so clearly in accord with the evidence that there was an abuse of discretion in the trial court in granting a new trial. This raises the only question in the case on this appeal.

[1] "Where the evidence is such that it would have sufficiently supported the findings in favor of the party against whom the decision was given, and the trial court grants a motion for new trial made upon various grounds, including that of insufficiency of evidence, without in terms excluding such ground in its order entered on the minutes, we must presume, in favor of such order, that the court changed its opinion as to the effect of the evidence, and reached a conclusion upon the hearing of the motion favorable to the party making the motion." (Pollitz v. Wickersham, 150 Cal. 238, 244, [88 Pac. 911].) This rule is equally applicable whether the case be tried by a jury or by the court without a jury. [2] On appeal from an order granting a new trial, the presumption is against the findings and not in their favor. (Condee v. Gyger, 126 Cal. 546, [59 Pac. 26].)

The accident in question occurred in the middle of the afternoon, on a much-traveled street. A witness, whose place of business was at the same corner, stated that it is very seldom that you could see a block in either direction free of cars. Assuming, as did the court below, that the rate of speed permitted was controlled by the state law and not by a city ordinance limiting to ten miles per hour the rate of speed at that street intersection, it was the duty

of the defendant to drive his automobile "at a rate of speed not greater than is reasonable and proper, having regard to the traffic and use of the highway." (Motor Vehicle Act of 1913 (Stats. 1913, p. 649), sec. 22, subd. b.) At the time of the accident, the plaintiff was walking toward the west across Flower Street on the south side of Twelfth Street, and the defendant was driving north on Flower Street. Defendant, according to his testimony, saw the plaintiff and his companion walking across the street, when defendant was 150 feet from them. Then, he says, before the accident, "Mr. Clohan hesitated and started on, facing me, with his hand in this position [indicating], as much as to say, 'I have plenty of time.' Suddenly, as he got to a point beyond my clearance, he stepped back as though something unforeseen had caused him to step back— my recollection is that a car passed me and went on ahead of me."

The argument of counsel for appellant is directed principally to criticism of an opinion filed by the court when the order granting a new trial was made. Whether that opinion is correct or not is not the issue to be determined here. The appeal is, as it must be, from the order, and not from the opinion. [3] We may say, however, that if by its order the court intended to determine (as presumably it did and as stated in the opinion), that, "for the defendant to approach the crossing at the speed it was found by the jury he did, alongside of another automobile, also proceeding at the same or a greater rate of speed, while pedestrians were crossing the street, was, as a matter of fact, clearly negligence," we think that the evidence was sufficient to support that conclusion.

The order is affirmed.

Shaw, J., and James, J., concurred.

[Civ. No. 2890. First Appellate District, Division Two.-July 3,

1919.]

J. G. GUSTAFSON, Respondent, v. LOUIS WASSON,

Appellant.

[1] APPEAL JUDGMENT-PRESUMPTION.-The appellate court is bound to assume, in the absence of satisfactory showing to the contrary, that the judgment of the trial court was correct. [2] ID.-ALTERNATIVE METHOD BRIEFS-RECORD.-Where

an appeal is taken under the alternative method, the appellant must print in his opening brief the portions of the record on which he relies. The incorporation of the same in his closing brief does not constitute a compliance with the statute.

APPEAL from a judgment of the Superior Court of Sonoma County. Thomas C. Denny, Judge. Affirmed.

The facts are stated in the opinion of the court.

W. F. Cowan for Appellant.

E. M. Norton, Fred W. McConnell and J. R. Leppo for Respondent.

HAVEN, J.-The defendant appeals, by the alternative method, from a judgment against him. In the appellant's opening brief it is stated that in the action the plaintiff claimed an easement to the flow of rainwaters in a certain ditch on lands of the defendant and damages caused by the overflow from the ditch on the lower lands of the plaintiff. An extremely condensed summary of the claims of the defendant is contained in the opening brief and a stipulation between the parties is set forth in full. This stipulation provided for the continuance of the trial; that, upon performance of the conditions and agreements of the stipulation by the defendant, the plaintiff by proper conveyance should release to the defendant the right to maintain the ditch mentioned in the amended complaint; that the defendant should pay plaintiff's costs, including a surveyor's charge; that the defendant should construct a new ditch and cause the easement in the same to be conveyed to the plaintiff, failing in which the defendant was to re

construct, restore, and reconvey to the plaintiff the ditch mentioned in the amended complaint; that the plaintiff should release to the defendant all claims for possible damages; and, that if the defendant should fulfill the preceding terms of the stipulation, the action should be dismissed, otherwise that the plaintiff should not be bound by any of the stipulations, and might proceed to trial of the cause in the same manner as if the stipulation had never been made. Following the stipulation in the appellant's opening brief are numerous statements of fact referring to pages of the reporter's typewritten transcript. From the brief it appears there were supplemental pleadings of some sort, but from nothing contained in the brief can it be ascertained what the original, amended, or supplemental plead. ings were. The statement is made that the court, without the introduction of any evidence and without any proceedings other than certain admissions of both parties in open court, proceeded to enter judgment. There is no statement in the brief concerning the admissions which were made, nor what the appellant's claims are in regard to them. The opening brief wholly fails to meet the requirements of section 953c of the Code of Civil Procedure and rule VIII of the supreme court (176 Pac. ix). Because of the failure of the appellant's opening brief to show those parts of the record upon which he relied, the argument presented in the brief is of academic interest only. The appellant failed to show error on the part of the trial court, without which showing the judgment must necessarily be affirmed. [1] "We are bound to assume, in the absence of satisfactory showing to the contrary, that the judgment of the trial court was correct." (Lutz v. Merchants' Nat. Bank of San Diego, 179 Cal. 401, [177 Pac. 158].)

[2] The respondent rests on the failure of the appellant to comply with section 953c of the Code of Civil Procedure and rule VIII of the supreme court, and in his brief no argument is presented upon the merits of the cause.

In the appellant's closing brief the claim is made that section 953c of the Code of Civil Procedure does not expressly require that the portions of the record referred to be incorporated in the opening brief, and, therefore, it is stated that the portions of the record on which the appellant relics are printed in the closing brief.