Borges v. Pacific Greyhound Lines, Inc. (A Corporation) ( 1935 )

SPENCE, J., Dissenting.

I dissent. The appeal was taken from the' order granting a new trial. Certain instructions given by the trial court were erroneous while others were misleading. The question of whether the giving of said instructions was prejudicial was primarily a question to be determined by the trial court in ruling upon the motion for new trial and its determination should not be disturbed unless the trial court abused its discretion. (Nieves v. Vigolino, 135 Cal. App. 763 [27 Pac. (2d) 916]; Pope v. Wenisch, 109 Cal. App. 608 [293 Pac. 622] ; 20 Cal. Jur. 140.) A review of the record leads me to the conclusion that a close case was presented upon the issues of negligence and contributory negligence and that it cannot. be said that the trial court abused its discretion in determining that the giving of said instructions was prejudicial. I am therefore of the opinion that the order granting a new trial should be affirmed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on January 3, 1936, Spence, J., voting for a rehearing; and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 30, 1936.