Drury v. Hagerstrom

McCOMB, J.

From a judgment in favor of defendants after trial before a jury in an action to recover damages for the death of plaintiff’s husband alleged to have been caused by the negligence of defendants, plaintiff appeals.

The evidence being viewed in the light most favorable to defendants (respondents) and pursuant to the rules set forth in

Estate of Isenberg,

63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the essential facts are:

Shortly after midnight of May 20,1943, Harold C. Rhoades, an employee of defendants, was driving a large truck and trailer in a southerly direction on San Fernando Road where it intersects Chevy Chase Drive. At the same time plaintiff’s husband, Mr. Drury, was crossing from the east to the west side of San Fernando Road at a point 10 feet outside of a marked crosswalk. The forepart of the truck passed Mr. Drury, who continued to walk in a westerly direction walking into the side of the vehicle with resulting injuries from which he died.

Plaintiff urges reversal of the judgment on three propositions which will be stated and answered hereunder seriatim:

First:

The judgment is not supported by the evidence.

This proposition is without merit. Mr. Rhoades, the driver of defendants’ truck, gave evidence from which the jury was justified in finding the facts set forth above.

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From the facts

[744]

thus found, the jury impliedly found that defendants- were free from negligence and that the deceased met his death as the result of his own contributory negligence in walking into the side of defendants’ truck. Under well established rules in this state we must disregard conflicting testimony and inferences which the jury might have drawn from the evidence but did not. (See

Estate of Isenberg, supra.)

Second:

The trial court committed prejudicial error in receiving evidence that decedent was inebriated at 3 p. m. on May 20, 1943, for the reason that such evidence of intoxication was too remote from the time of the accident.