Lazzarotto

At about 1:10 in the morning of January 22, 1955, plaintiff drove his sedan into the side of defendant’s freight train, wrecking the automobile and causing plaintiff severe injuries. In this action for damages upon a complaint charging negligence, defendant denied negligence and pleaded the contributory negligence of plaintiff. The cause having been submitted to a jury a verdict was rendered in favor of plaintiff for $30,000; judgment on the verdict was entered and in due time defendant made a motion for judgment notwithstanding the verdict and a motion for a new trial. The motions were heard at the same time and both were granted. Plaintiff has appealed from both orders. Under the procedure of section 629 of the Code of Civil Procedure, the order granting defendant’s motion for a new trial would be operative only in the event the judgment notwithstanding the verdict should be reversed. Plaintiff seeks a reversal of both orders and reinstatement of the judgment on the verdict. Defendant defends both orders. Our attention will be directed first to the order granting judgment notwithstanding the verdict. We shall assume for the purpose of our discussion that no bell was rung and no…