Kramm

Action for personal injury to plaintiff's intestate resulting in his death. At the close of plaintiff's evidence the court granted defendant's motion for a nonsuit. Plaintiff moved for a new trial, which was denied, and plaintiff appeals from this order and from the judgment of nonsuit *Page 609 and dismissal of the action. The complaint alleged that defendant did carelessly, negligently and willfully "run one of its cars upon, knock down and kill Phillip Kramm." The defense is a denial of plaintiff's complaint and avers contributory negligence on the part of deceased. There are certain well-established rules governing appellate courts in reviewing the action of trial courts in granting nonsuits which may be stated at the outset. The motion for nonsuit admits the truth of plaintiff's evidence, and every inference of fact that can be legitimately drawn therefrom, and upon such motion the evidence should be interpreted most strongly against the defendant. ( Goldstone v. Merchants' Storage Co., 123 Cal. 625 , [ 56 P. 776 ].) If there is any evidence tending to sustain plaintiff's action the nonsuit should be denied, without passing upon the sufficiency of such evidence ( Zilmer v.…

Respondent petitions for a rehearing on two grounds: First, the insufficiency of the complaint; second, insufficiency of the evidence to entitle the case to be submitted to the jury. Upon the second of these points we are still of the opinion that the court erred in granting defendant's motion for nonsuit. Upon the first point, it is perhaps due to defendant that we express an opinion, inasmuch as it is claimed that at the oral argument attention was called to it, although in respondent's brief the point was not alluded to and might, for that reason, be disregarded. ( People v. Northey, 77 Cal. 635 , [ 19 P. 865 , 20 P. 129 ]; Phelps v. Mayer, 126 Cal. 551 , [ 58 P. 1048 ].) The complaint charged that defendant by its agents and servants "carelessly and negligently and willfully and wantonly . . . ran one of its street-cars upon, knocked down, ran over and killed said Philip Kramm." There was a demurrer *Page 617 to the complaint for insufficient facts and also for uncertainty because it could not be ascertained therefrom whether plaintiff claimed damages for the alleged careless and negligent conduct of defendant or whether damages were claimed for the alleged willful and wanton…