Luckie

Defendant appeals from an order granting a new trial after a verdict in its favor.

The action is for the recovery of damages for personal injuries sustained in an automobile accident, alleged to have resulted from the negligence of defendant’s servants. Whether the persons whose negligence caused the accident were the servants of defendant or of one whom defendant claims was an independent contractor, is one of the principal questions presented.

[1] The order granting the new trial is as follows: “The motion of plaintiff for a new trial herein is hereby granted, upon the grounds specified in the notice of intention filed herein, except upon the grounds of insufficiency of evidence, as to which grounds said motion is denied.” The language of the order eliminates from consideration here the question of the sufficiency or insufficiency of the evidence to justify the verdict. (Kauffman v. Maier, 94 Cal. 270 , [18 L. R. A. 124, 29 Pac. 481 ]; Siemsen v. Oakland etc. Ry. Co., 134 Cal. 494 , [ 66 Pac. 672 ]; Higgins v. Los Angeles Gas etc. Co., 159 Cal. 651 , [34 L. R. A. (N. S.) 717, 115 Pac. 313 ].) Though respondent, had he elected to do so, could have presented to this court any…