Coates v. Chinn

SPENCE, J.

Plaintiffs are the widow and minor child of Kenneth Coates, who was killed when his automobile struck a large limb which had fallen from a eucalyptus tree onto the highway. The tree was part of a row of eucalyptus trees growing on the property of defendants. At the conclusion of plaintiffs’ evidence, a motion for nonsuit was granted. Plaintiffs appeal from the judgment accordingly entered.

Plaintiffs based their complaint on two theories: (1) nuisance, because the limb from defendants’ eucalyptus tree unlawfully obstructed the highway (Civ. Code, §3479; Pen. Code, § 370); and (2) negligence, because defendants permitted the limb to extend over the highway without taking reasonable precautions to guard against its falling.

In determining whether the granting of the nonsuit was proper, the appellate court must resolve every conflict in the testimony in favor of plaintiffs, consider every inference which can reasonably be drawn and every presumption which can fairly be deemed to arise in support of plaintiffs, and ac

[307]

cept as true all evidence adduced, direct and indirect, which tends to sustain plaintiffs’ case.

(Lashley

v.

Koerber,

26 Cal. 2d 83, 84-85 [156 P.2d 441] ;

Wickoff

v.

James,

159 Cal.App. 2d 664, 667-668 [324 P.2d 661].) Relying upon this rule, plaintiffs properly maintain that tb^ were entitled to have their case submitted to the jury, and that the judgment entered upon granting the nonsuit must be reversed.

The accident occurred on the highway near Oakville, Napa County, on November 14,1954, at about 6:30 p.m. It was dark and it had been raining. Decedent was driving between 45 and 50 miles an hour. Mrs. Coates was sitting in the front seat beside the deceased, and their son was in the rear seat. According to Mrs. Coates, the end of a broken limb 6 to 8 inches in diameter suddenly loomed up in front of the ear, and there was no way of avoiding it. The jagged end of the limb came through the windshield, killing the deceased and seriously injuring Mrs. Coates.