DocketNumber: Civ. No. 10121
Judges: Crail
Filed Date: 6/26/1935
Status: Precedential
Modified Date: 11/3/2024
This action grew out of a collision between a motor truck and a Ford automobile, resulting in the death of Francis Asbury, the driver of the Ford automobile. The plaintiffs are the widow and sons of the deceased and the defendants are the driver of the motor truck and its owners. The accident occurred about 8 A. M. on February 28, 1934, at. the intersection of Olive and Maple Streets in the county of Los Angeles. Olive Street is a “through boulevard”, running east and west, paved with concrete and divided by painted lines into three lanes. Maple Street runs north and south, crossing Olive Street at right angles, and is paved with macadam. There were stop signs at the northwest and southeast corners of the intersection and under an ordinance of the county of Los Angeles it was unlawful for the-, operator of any vehicle traversing any “through boulevard” to fail, before entering upon such boulevard, to bring such vehicle to a complete stop at the place where such highway is crossed by the continuation of the nearest sideline of such boulevard. The intersection is neither in a business nor a residential zone and the northeast and southeast corners are unobstructed.
Judgment was entered in favor of the plaintiffs and against the defendants in the sum of $4,000 on the verdict ’of the jury which heard the case. The defendants appealed from the judgment and from the order of the trial court denying their motion for a judgment notwithstanding the verdict.
As grounds for reversal of the judgment, appellants urge six specifications of error. Among them are, first, that the evidence is insufficient to justify the verdict; third, that there was no conflict in the evidence and therefore the question of appellants ’ liability was a question of law for the court and not one of fact for the jury; sixth, that the court erred in denying appellants ’ motion for a directed verdict and for a judgment notwithstanding the verdict, and in denying appellants’ motion for a new trial. These may all be considered at once and will not be separately discussed.
Defendant Groff, the driver of the truck, and the only eyewitness to the accident, testified that at the time of the accident he was returning from San Diego to Los Angeles in the course of his employment; that he was going west on Olive at about 17 miles an hour when he reached the intersection of Olive and Maple Streets; that the weather was very foggy and that vision was limited to 30-35 feet, or perhaps 20-25 feet; that the truck lights were burning and the Ford lights were not; that he was familiar with the intersection and knew that there were stop signs facing vehicles entering Olive Street from Maple Street and he relied upon the fact that he was traveling upon a through boulevard; that he did not see the Ford car before it entered the intersection; that when he first saw the Ford the front end of his truck was past the property line of the intersection; that the Ford did not stop
Appellants’ contention is that as there was only one eyewitness to the accident and as his testimony stands uncontradieted by that of any other eye-witness, it must be taken as true and therefore the judgment cannot stand. The one eyewitness to the case was the driver of the truck. He is one of the defendants against whom the judgment was entered. The jury was the sole judge of the credibility of the witnesses. This witness was before the jury and the jury had the right to take into consideration, for the purpose of determining his credibility, the conduct of the witness, his character as shown by the evidence, his manner on the stand, his interest in the case, his bias and prejudice, if any, his degree of intelligence, the reasonableness or unreasonableness of his statements, and the strength or weakness of his recollection. According to the testimony of defendant Groff he was free from any negligence in the matter and the driver of the Ford car, who never regained consciousness, was guilty of negligence proximately contributing to the injury. But it is very evident from the verdict rendered that the jury did not believe defendant Groff, for if his testimony were taken as true the verdict should have gone for the appellants. The question - which confronts us, therefore, is whether the verdict and judgment find support in the evidence and whether the action of the jury in rejecting the evidence given by defendant Groff is jus
Appellants’ second specification of error is that the evidence showed deceased to have been guilty of contributory negligence as a matter of law. Appellants contend that the legal presumption that the deceased exercised due care for his own safety has been overcome as a matter of law by the testimony of defendant Groff which was positive to,the contrary. But a legal presumption is evidence and may outweigh positive evidence adduced against it. Whether or not the deceased was guilty of contributory negligence was clearly a question for the jury to determine under all of the evidence. For a well-considered case and a clear opinion involving this very question see Smellie v. Southern Pacific Co., 212 Cal. 540 [299 Pac. 529],
Appellants’ fourth specification of error is that counsel for respondent was guilty of prejudicial misconduct in
Appellants also specify as reversible errors four separate instructions given by the court. But we find no reversible error in these instructions.
The judgment and order are affirmed.
Stephens, P. J., and Scott, J., pro term., concurred.
A petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 22, 1935.