Melikian v. Independent Paper Stock Co.

FRICKE, J.,

pro tem.

Respondent, engaged in the rubbish business, after driving his truck from the premises of appellant company proceeded about 35 feet west and stopped for the purpose of closing the end gates. While respondent was at the rear of his truck a truck of appellant company backed up, going from east to west, a distance of 72 feet, and the rear of said truck struck respondent, forcing him against his own truck and causing injuries to him. The company’s truck was operated by appellant Peach, its employee, and with its consent. Appellants do not contend that the verdict is excessive or that the evidence was insufficient to show negligence on their part, but do contend that respondent was negligent as a matter of law, because, as shown by some of the evidence, he stopped his truck on the roadway side of a truck parked at the edge of the highway, and at a point where his truck as well as the truck parked at the curb were partially in front of one of the entrances to a garage.

In connection with this contention appellants claim error in the giving and refusal of instructions to the jury. The contention is based on appellants’ choice of the conflicting testimony as to the position of the truck, and on the provisions of section 138 of the California Vehicle Act which make it unlawful to stop, stand or park any vehicle in front of a public or private driveway, or on the roadway side of any vehicle stopped or parked at the edge or curb of a highway, except under certain conditions not present in this case, and

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upon article Y, section 25, of Ordinance No. 50115, New Series, of the city of Los Angeles, as amended by Ordinance No. 72109, which prohibits, with like exceptions, the standing of any vehicle where it will obstruct the use of any driveway.

There is a conflict in the evidence as to the position of respondent’s truck. The father of appellant Peach testified that at the time of the accident he was working in front of the garage, and ran over to respondent and helped him up from the railroad track running north and south and located east of the garage. He also testified that the rear end of respondent’s truck was on the railroad track, and marked the position of the truck on the diagram used at the trial. This evidence, if believed by the jury—and in view of the verdict we may assume they did believe it—entirely eliminates the question of a violation of statute and ordinance. The jury by its verdict acquitted respondent of contributory negligence, and their determination of the facts, supported by substantial evidence, is conclusive here.