I concur in all that is said in the foregoing opinion and in the conclusion reached by it, but I think the conduct of the trial judge, as shown by his remarks in dealing with the motion for a nonsuit, should not pass unnoticed. As he felt a doubt upon the question as to the disposition of the motion, he should have denied it (Bush v. Weed Lumber Co., 55 Cal.App. 588 [204 P. 25]). Instead of taking that course, however, he invited respondent to rest its case upon the evidence presented by appellant so that he might weigh what he considered to be conflicting evidence, a thing he could not do in considering the motion. Counsel quite naturally accepted this unusual invitation and withdrew the motion, with the result that, while a serious accident had occurred, a young woman had been badly injured, an automobile had been demolished, the plaintiff in an action to recover for the loss of the car was in moral effect denied a trial on the merits. He was also denied compensation for an admitted loss, one for which it was decided that his daughter, the driver of the car, was not responsible, a strange outcome, indeed.
In disposing of cases upon appeal it is usually necessary for courts of review to suffer in silence over exhibitions of the idiosyncrasies of some trial judges, but in the interests of justice it seems proper that silence be broken in the *Page 369 present instance. We should take the time and the space necessary to condemn this novel method of making disposition of attempts to procure justice at the hands of the courts.
Thompson, J., concurred.