Joseph v. Vogt

MoCOMB, J. —

Prom a judgment in favor of defendant after trial before a jury in an action to recover damages for the wrongful death of plaintiff’s minor son plaintiff appeals. There is also a purported appeal from an order denying a motion for a new trial.

Viewing the evidence most favorable to defendants (respondents), the essential facts are:

December 28, 1937, at 5:33 P. M. defendant John Richard Vogt was driving his automobile in a northerly direction on Market Street in the city of Inglewood near where it intersects with La Brea Avenue. At the intersection he turned west on La Brea Avenue, traveling approximately 15 miles per hour. Said defendant looked to the right and saw plaintiff’s son, riding his bicycle in a southerly direction on Market Street without headlights at approximately 18 miles per hour. Almost instantly he crashed into the right front fender of said defendant’s car, receiving injuries from which he died.

The parties agreed that the sun set on December 28, 1937, at 4:52 P. M., and that defendants Edward Vogt and Mabel Lillian Vogt signed their son John Richard Vogt’s application for a driver’s license.

These are the questions to be determined:

First: Was there substantial evidence to sustain the implied findings of the jury that (a) it was negligent for decedent to operate his bicycle after sunset without a light, contrary to sections 618 and 622 of the California Vehicle Code, and (b) such negligence ivas the sole proximate cause of the accidentf

Second: Did the trial court abuse its discretion in denying plaintiff’s motion for a new trial on the ground of newly discovered

evidence#

The first question must be answered in the affirmative. An examination of the record discloses there was substantial evi

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dence considered in connection with such inferences as the jury may have reasonably drawn therefrom to sustain the facts heretofore mentioned and the implied findings of the jury set forth above. For example, defendant John Richard Vogt testified when examined pursuant to the provisions of section 2055 of the Code of Civil Procedure to the facts set forth above.