Hosking v. Danforth

California Court of Appeal Sep 28, 1934 No. Civ. 5116Published

Before: Deirup

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Holding. The court affirmed the trial court's judgment for the defendant, holding that the trial court's findings on negligence and contributory negligence were supported by substantial evidence and that the physical evidence of the collision did not conclusively prove the defendant was negligent.

Issues

Whether the trial court's finding of no negligence on the part of the defendant was supported by the evidence.
Whether the physical evidence of the collision rendered the defendant's testimony inherently improbable as a matter of law.
Whether the trial court erred in denying the plaintiff's motion to reopen the case to present expert testimony.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was plaintiff’s duty to yield the right of way (sec. 131, California Vehicle Act), and her failure to do so constituted negligence.”

“We cannot reverse upon the ground that the finding of the court is contrary to the evidence unless we can see that the fact as found contravenes recognized physical laws”

DEIRUP, J.,

pro

tem.

This action arose out of a collision after dark between the automobiles of plaintiff and defendant within the intersection of Seventeenth and G Streets in Sacramento. Defendant’s car was traveling north in its lane of traffic on Seventeenth Street. Plaintiff’s car was going west in its lane on G Street. The two came together in the northeast quadrant of the intersection, the plaintiff’s car being struck in front of the left rear wheel. The force of the impact crushed the fender and broke the wheel; the car turned over two or three times and was badly damaged. Plaintiff was seriously injured. Belatively little damage was done to defendant’s car. Plaintiff brought suit for personal injuries and property damage, alleging that defendant was negligent. Defendant denied negligence and pleaded contributory negligence on the part of plaintiff. The trial court found for the defendant on the issue of negligence and entered judgment in his favor. Plaintiff appeals from the judgment.

Plaintiff testified that before she entered the intersection she slowed down to a rate of speed of about five miles an hour, after looking to the right and to the left. She saw lights 150 feet down the street to her left, but did not see defendant’s car before it struck hers. Defendant and his wife, who was riding with him, testified that they were driving at the rate of from 10 to 15 miles per hour and looked to the right and left before they entered the intersection. They saw the headlights of ears in the street to the right, but not close. They did not identify plaintiff’s car until just before it passed in front of them. Defendant estimated its speed then at 35 miles per hour. He threw on his brakes and attempted to turn to the left, but was unable to avoid the collision.

In support of the judgment the testimony on the part of the defendant, rather than that of the plaintiff, must of course be taken as true. If, upon any material point, the testimony is in conflict it must be assumed that the trial court resolved the conflict in favor of the prevailing party.

(Gjurich

Fieg,

164 Cal. 429 [129 Pac. 464, Ann. Cas. 1916B, 111].) Therefore unless the testimony of defendant’s

[181]

Hosking v. Danforth

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DEIRUP, J.,

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