Elliott v. Market Street Railway Co.

California Court of Appeal Jan 31, 1935 No. Civ. 9164Published

Before: Gray

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Holding. The court held that the evidence was insufficient to support the verdict because the respondent's testimony regarding the car's swaying was too vague to establish negligence, and the respondent was contributorily negligent as a matter of law.

Issues

Whether the evidence was sufficient to establish the appellant's negligence regarding the speed and swaying of the street car.
Whether the respondent's own negligence was the sole or a contributing cause of her injuries.

Disposition. reversed

Quotations verified verbatim against the opinion

“The conflict between respondent’s estimate of the ear’s speed and that made by appellant’s witnesses is fanciful, but not real”

“Since some swaying is an inherent and unavoidable characteristic of any moving car, such description of this car’s swaying is too vague, indefinite and uncertain to permit the jury to find that its operation with such swaying was negligent.”

“Knowing that the car was swaying and having ample opportunity to avoid it by stepping backwards slightly, she was negligent in not removing from the path of the oncoming car and she cannot recover”

GRAY, J.,

pro tem.

The complaint charged that while respondent was standing on Market Street at its intersection with Montgomery Street, in San Francisco, appellant so negligently operated its street car westerly on Market Street as to cause it to collide with respondent, thereby inflicting upon her personal injuries. The answer denied such negligence and affirmatively alleged her negligence. The jury returned its verdict awarding damages to her. From the judgment entered thereon, appellant appeals upon the ground of the insufficiency of the evidence to justify the verdict. In support thereof it argues (1) that the evidence is insufficient to establish its negligence, (2) that the evidence shows that her negligence was the sole cause of her injuries, and (3) that the evidence discloses her contributory negligence. If either argument is correct the judgment, of course, must be reversed.

The disposition of this appeal, then, requires a review of the evidence. The result of such review is governed by the following rules: This court will not disturb a verdict where there is a conflict of evidence on material points and when there is evidence to support the verdict; but such conflict and such evidence must be real and substantial.

(Driscoll

Market Street Cable Ry. Co.,

97 Cal. 553 [32 Pac. 591, 33 Am. St. Rep. 203].) Since an appellate court may not invade the province of the jury, its verdict is conclusive if a conflict in the evidence exists, but such conflict must be substantial and real and not fanciful or fictitious, nor a mere pretense; mere conclusions will not serve to meet the

[294]

definition of substantial or any evidence as against the positive, direct evidence of a fact.

(Thoreau

Industrial Acc. Com.,

120 Cal. App. 67 [7 Pac. (2d) 767].) Before the verdict is conclusive on appeal, the conflict must be substantial and real and not merely fanciful; it must be of such a character that reasonable minds, viewing it dispassionately, might fairly entertain a difference of opinion upon it.

Elliott v. Market Street Railway Co.

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GRAY, J.,

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