Tanaka v. Granelli

California Court of Appeal Aug 4, 1930 No. Docket No. 7317.Published

Before: Nourse

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Holding. The court held that the evidence was sufficient to support the jury's verdict and that the trial court did not err in instructing the jury that the presumption of due care could be considered as evidence.

Issues

Whether the evidence was sufficient to support the jury's verdict regarding the collision.
Whether the plaintiff was guilty of contributory negligence as a matter of law.
Whether the trial court erred in instructing the jury that the law presumes a person acted with reasonable care in the absence of contrary evidence.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“That a presumption is evidence and may in certain cases outweigh positive evidence adduced against it has long been the settled law of this state.”

“Upon the point involved— the propriety of the instruction given—we find no error.”

NOURSE, P. J.

Plaintiff sued for personal injuries arising out of a motor vehicle' collision. The cause was tried with a jury which returned a 'two thousand dollar verdict for plaintiff. Defendant appeals on typewritten transcripts.

Early in the morning of August 8, 1926, plaintiff was driving a Ford car down the “Big Curve.” on the Skyline Road leading to Half Moon Bay. At the same time defendant was driving a Hudson car up the grade in the opposite direction. As plaintiff approached a point in the road where there was a sharp curve the defendant came around the curve traveling on the left, or plaintiff’s side of the center of the highway, at a speed of twenty-two to twenty-five miles an hour. Plaintiff slowed his car to a speed of about five miles, turned off the paved portion of the highway and within a foot of a steep embankment on his right, and, when in this position, and approximately at a standstill, defendant continued on his course, striking and breaking the left rear wheel, fender and running-board of plaintiff’s ear. As a result of the impact the plaintiff received a severe injury to his eye for which the damages were awarded.

The appellant argues that the evidence is insufficient to support the verdict, but he does no more than present the usual case of a conflict between the testimony of the participants in the collision, and it is unnecessary to say more than that such conflict is to be determined by the jury.

Appellant also argues that the respondent was guilty of contributory negligence as a matter of law. Here, too, the appellant merely presents the ordinary case where there is some evidence which would have supported a verdict finding respondent guilty of contributory negligence. But

[549]

this is far different from a case which would justify the trial judge in taking the issue from the jury. The precise question was recently discussed by us in

Swartz

Acme Express & Drayage Co.,

102 Cal. App. 615 [283 Pac. 358], and we could serve no purpose in extending that discussion here.

Tanaka v. Granelli

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NOURSE, P. J.

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