Stewart v. Langer

MARKS, Acting P. J.

This is an appeal from a judgment rendered in favor of defendant Otto Danger denying plaintiffs’ judgment for damages caused by the death of William Alfred Stewart, who was killed in a collision with an automobile being driven by defendant. Plaintiffs sued as the sole heirs at law of the deceased. The State of California did not appear in the action. Otto Danger will be referred to as the defendant.

Findings of fact were waived. The judgment recites that the trial court found the issues of the negligence of the defendant and the contributory negligence of Stewart in favor of defendant. “Findings having been waived, every intendment is in favor of the judgment, and, therefore, upon all of the issues raised by the pleadings, it must be presumed that the trial court, in effect, found all the facts necessary to support the judgment in favor of the plaintiff (the successful party).

(Antonelle

v.

New City Hall Commrs.,

92 Cal. 228 [28 Pac. 270];

Bruce

v.

Bruce,

16 Cal. App. 353 [116 Pac. 994].) ”

(Gray

v.

Gray,

185 Cal. 598 [197 Pac. 945].)

As grounds for reversing the judgment plaintiffs urge that: “1. The deceased was not negligent. 2. The defendant was negligent. 3. The defendant had the last clear chance to avoid the accident. ’ ’

As the sole question before us is the sufficiency of the evidence to support the implied findings of the trial court, our only problem is to determine if there is any material and competent evidence in the record supporting those implied findings. We are not concerned with conflicts in the evidence nor with the weight to be given to conflicting evidence.

There is evidence in the record showing the following facts: That highway number 101, at the place of the accident, runs

[62]