Gomez v. Lindberg

MARKS, J.

This is an appeal from a judgment entered after the granting of a motion for nonsuit. The motion was granted upon the ground that the evidence showed plaintiff guilty of contributory negligence as a matter of law.

[731]

The general rule governing the granting of motions for non-suit is clearly stated in 9 California Jurisprudence, page 551, as follows.■ “It is, therefore, well settled that upon a motion for nonsuit, particularly Avhcn made at the close of plaintiff’s case, all the evidence must be construed most strongly against the defendant. Every favorable inference, fairly deducible, and every favorable presumption fairly arising from the evidence produced must be considered as facts in favor of the plaintiff. If the evidence is fairly susceptible of. two constructions, or if either of several inferences may reasonably be made, the court must take the view most favorable to the plaintiff. All the evidence in favor of the plaintiff must be taken as true, and if contradictory evidence has been given it must be disregarded. On such motion the court has nothing to do with the question of the credibility of the witnesses, nor with the testimony tending to create a conflict. It has nothing to do with any apparent disagreement as to the facts among plaintiff’s witnesses, nor with any conflicts between the evidence brought out on direct and cross examination. The evidence of the plaintiff which is relevant to the issues is to be given its full probative strength, whether or not it has been erroneously admitted.” (See cases there cited, and cases cited in Cal. Jur. Ten-Year Supp., vol. 5, pp. 234 et seq., see. 35.) With this rule in mind we need only consider such evidence as is favorable to plaintiff. We will disregard all conflicts and all evidence favorable to defendants of which the transcript contains much.

Between 6 and 7 o’clock on the morning of February 23, 1933, plaintiff and defendant Lindberg were each driving easterly on that portion of Highway 99 connecting Indio and Oasis in Riverside, County. Plaintiff was ahead in a model T Ford touring car. Defendant Lindberg was following in a Ford V-8. Plaintiff made a left turn into a private drive leading to the farm of his employer. During this maneuver the two cars came into collision near the northerly or left-hand edge of the paved portion of the road. Both cars were damaged and the drivers were injured. Plaintiff had been driving between 25 and 30 miles an hour until he started to make the turn when he slowed down to about 10 miles per hour. Lindberg was driving about 42 miles an hour until he attempted to pass plaintiff’s car on its left when he increased his speed. After the two cars came to rest there were