McNeely

This is an appeal brought in an action for personal injuries after three jury trials, in which the final judgment was rendered against the defendant Hill, now appellant. The acts complained of occurred in April, 1917. The complaint was filed in June, 1917, later default entered and vacated and the case was first tried before a jury in July, 1918, with a verdict against both defendants for $2,400. Motion for a new trial was granted by the court and the case was tried a second time on December 11, 1918, in which judgment was rendered against defendant Hill, appellant herein, in the sum of $2,500. Motion for a new trial was granted in January, 1919, in these words: “It is now ordered that said motion be granted on the ground alone of plaintiff’s contributory negligence.” Plaintiff appealed from the last-mentioned order in April, 1921, and the order was affirmed by the district court of appeal in 52 Cal. App. 187 [ 198 Pac. 427 ]. The ease was again called for trial in June, 1922, wherein, on motion of counsel for plaintiff that the evidence be restricted to the one issue of contributory negligence alone, which motion was denied by the judge, the said case was withdrawn from the…