Cummings v. Kendall

THOMPSON, J.

J.—The respondent has moved under the provisions of rule V, subdivision 3, of California Court Rules, to dismiss the appeal in this ease on the ground that the issues are unsubstantial and that the appeal was taken merely for delay. The appellants’ opening brief has been filed.

[380]

We are of the opinion that the appeal presents a legal problem too serious to justify the dismissal of the case without a hearing on its merits. The appellants contend that there is no evidence supporting the findings or judgment that their alleged negligence contributed in anywise to the injuries sustained by the plaintiff. The accident which is the foundation of this litigation involves the collision of three automobiles. The appellants’ car was following the machine in which the plaintiff rode as a passenger, in the night-time, down grade on a straight unobstructed highway at a distance of about 150 yards. They were traveling fifty or sixty miles an hour. The car in which the plaintiff and four other men were riding met an approaching machine driven by Norman Gobet, whom one witness testified was drunk. Gobet swerved his ear over onto the wrong side of the highway in the pathway of the other machines, and a head-on collision occurred. The driver of the appellants’ ear did not see the approaching Gobet machine: He heard the impact of the two cars ahead of him, but did not see either machine. He failed to apply his brakes until he arrived at a point thirty to fifty feet from the plaintiff’s car as it lay on its side or stood on its wheels in the middle of the highway. He swerved his machine to his left and hit the plaintiff’s car, landing in the ditch sixty feet beyond that point. When he returned to the place of the disaster the plaintiff’s machine lay upon its side badly demolished. All of the occupants of that machine were unconscious. One of them died subsequently from the results of his injuries. The plaintiff was seriously and permanently injured. Each of the occupants of that car testified he remembered absolutely nothing after the collision with the Gobet machine. Gobet was sued jointly with the appellants. Apparently he was not served with process. He did not answer or appear at the trial. No judgment was rendered against him. The judgment was rendered against the appellants only.

We have read the transcript of testimony, and find no evidence, unless it may be inferred, that the subsequent striking of plaintiff’s car by the appellants’ machine, contributed in any degree or manner to the injuries previously received by the plaintiff in the collision with the Gobet machine. The evidence seems to be lacking in that regard. In support of the findings and judgment, we may assume the