Takahashi v. White Truck & Transfer Co.

SHINN, J.,

pro tem.

In consolidated actions for damages for personal injuries suffered in a single accident, the court after verdicts in favor of plaintiffs, notwithstanding such verdicts, entered judgments in favor of the defendant. Plaintiffs appeal separately upon a single record.

Some two hours before.sunrise on a rainy morning plaintiffs, traveling in an automobile driven by plaintiff Takahashi at a speed of thirty-five or forty miles per hour, ran into the rear of a slowly moving trailer loaded with oil well casing. The question on each appeal is whether there was substantial evidence that the accident was the result of defendant’s negligence.

Each plaintiff testified that there were no lights at the rear of the trailer. A witness, Mrs. Mick, who was on the scene of the accident shortly after it happened, testified that she did not see any light on the rear of the trailer or at the rear of the casing, which she testified extended five or five and one-half feet beyond the rear of the trailer. On behalf of defendant, witnesses testified that there were two tail lights on the rear of the trailer and two load lights fastened to the rear of lengths of casing which had been installed the afternoon before, after the truck was loaded. Witnesses testified that the lights were burning when the truck left the yard early in the morning, and the truck driver testified that he alighted from the truck, inspected the lights and found them burning not long before the accident, and tha1 the collision occurred some seventy-five or one hundred feet beyond a point where he had looked back and had seen on the wet pavement the red reflection of lights from the rear of the trailer and load. A great deal is said in the briefs, particularly in respondent’s brief, respecting the weight of the evidence on behalf of plaintiffs as compared with that of the defendant. The former is classified as negative in character, which of course it is, since the plaintiffs who testi

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fled that there were no lights made no close inspection and could only testify that they saw no lights. The testimony on behalf of the defendant was positive in character. That the one class of testimony is ordinarily not as satisfactory as the other may not be questioned, but that is only one of the many considerations which affect the weight of evidence. More important is the fact that testimony of any character must be credible, that is to say, the witness testifying must be believed by the court or jury before his testimony can be accepted as proof of any fact. Beyond the point of determining whether testimony, be it positive or negative, has substantial probative value, the court is not concerned with the weight of the evidence on either side of the case, either in ruling upon a motion for judgment notwithstanding the verdict or upon an appeal from a judgment so entered. Sufficient of the jurors to render verdicts believed that no lights were burning on the truck at the time of the collision, thereby necessarily giving greater credence to the testimony of the witnesses for plaintiffs than to that of the defendant’s witnesses. It is not conceivable that had they believed the testimony of the truck driver in its entirety they would have found the defendant to have been negligent. The evidence