Taylor v. Williams

CRAIG, Acting P. J.

In consequence of a conceded collision of automobiles of the parties, a jury returned its verdict in favor of the plaintiffs and against the defendant for damages alleged to have been sustained by the former from resultant injuries. The defendant appealed from the judgment entered accordingly.

The sole question in controversy before the jury, which was further argued upon a motion for a new trial, and is strenuously contested upon appeal, consists of the existence or nonexistence of an intervening cause of the collision. From the testimony of eye-witnesses it appeared that while the plaintiffs were proceeding southerly upon a congested thoroughfare, the defendant rapidly appeared from the same direction, suddenly turned, and negligently drove so as to collide with the plaintiffs’ car. A witness designated by the defendant as the only disinterested person testifying, averred that as he was following the defendant’s machine a dark sedan swung around the latter which it “clipped”, causing the same to turn and strike that of the plaintiffs. Two other witnesses swore positively that they observed the car of the defendant approach and immediately crash into the automobile occupied by the plaintiffs. Witnesses for the respective parties whose testimony conflicted with previous statements shown to them while on the stand, and physical facts which the defendant construes adversely to the verdict and judgment, are the basis of his conclusion that “defendant’s story is more within the realms of probability”. How

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ever, we are compelled to resolve all intendments in favor of the conclusions of the jury and of the trial court, which foreclose a contrary finding of fact in the face of positive evidence. Since its sufficiency is admittedly ample, an appellate tribunal is not concerned with its possible conflicts.

(Beatty

v.

McGuirk,

113 Cal. App. 530 [298 Pac. 510].)

Upon the motion for a new trial, affidavits were filed by each side, principally upon the question as to whether or not sufficient diligence was shown as to previous efforts to locate a witness capable of furnishing newly discovered evidence. It is contended that four days preceding the date of trial defendant learned that this witness saw the accident, but that not until after the trial did the defendant discover that she had removed from a former residence and resumed her maiden name. Reversal is sought upon the authority of