Scott v. Nevis

SCHOTTKY, J.

Plaintiff filed an action for damages against defendants, alleging that a Kenworth tractor-truck and semitrailer owned by defendants collided with and damaged a CMC truck and trailer owned by plaintiffs. De

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fendant Nevis filed a cross-complaint seeking damages against plaintiffs for the alleged negligent operation of plaintiffs’ truck and trailer. The cause was tried before the court without a jury and the court found that the accident was caused by the concurring negligence of the drivers of the respective vehicles. Judgment was entered that plaintiffs take nothing by their complaint and that defendant Nevis take nothing by his cross-complaint. Plaintiffs appealed from the judgment in favor of defendants and against plaintiffs.

The sole contention of plaintiffs upon this appeal is that the evidence does not support the findings but establishes as a matter of law that plaintiffs are entitled to judgment. It is a rule too well established to require the citation of authorities that before an appellate tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence adduced, together with every inference favorable to the prevailing party which may be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes such prevailing party from recovering a judgment. The evidence must be construed most strongly against the losing party. Every favorable inference and presumption which may fairly be deduced from the evidence should be resolved in favor of the prevailing party. The prevailing party’s evidence must ordinarily be accepted as true, and evidence which is contradictory must be disregarded.

Bearing in mind this familiar rule, which, we are constrained to state, is too often disregarded by counsel who pay lip service to the rule and then proceed to argue the weight of conflicting evidence before an appellate tribunal, we shall give a brief summary of the evidence as disclosed by the record.

On the morning of November 15, 1949, one Sidwell, employee of plaintiffs, was traveling south on the Rio Vista-Dixon Highway in a 1947 model GMO cab-over truck and trailer owned by plaintiffs. The combined unit, truck and trailer, was 60 feet in length, and the width of the unit was 8 feet. At the same time one Noia, employee of defendant, was traveling north upon said highway in a 1944 model Kenworth tractor-trailer pulling a semitrailer, owned by the defendant. The combined unit, truck and semitrailer, was 60 feet in length, and the width of the unit was. 8 feet. Each driver was the sole occupant of the vehicle he was driv