Guderitz v. Broadway Bros.

MYERS, J.,

pro

tem.

Defendant appeals from a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial, after verdict for the plaintiff in an action to recover damages for personal injuries alleged to have been sustained by plaintiff as a result of the negligence of the defendant.

The plaintiff, a boy of ten years, was riding a bicycle easterly on Colorado Street in the city of Pasadena, between 11 and 12 o’clock in the forenoon, and was riding on the right-hand side of the street, within three or four feet of the curb. An automobile truck loaded with furniture overtook him from the rear and, in attempting to pass him, collided with him and threw him to the pavement. The injuries suffered by him were due to the fall on the pavement.

Appellant contends that the evidence is insufficient to establish the identity of the truck as one belonging to defendant. Counsel say: “We submit that the preponderance of the tes

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timony does not show that the truck in question was the truck of the defendant. ’ ’ Of course, this court has no concern with the question of the preponderance of the testimony. It is not within our province to weigh the evidence and determine where the preponderance lies. The only question for our determination in this connection is, Was there evidence which, if given its fullest effect in support of the verdict, was legally sufficient to support a finding in favor of plaintiff upon this issue? We find that one witness who saw the accident, positively identified the truck as one belonging to the defendant, and further stated that it had defendant’s name painted upon its side. Another witness also identified it as defendant’s truck, though not so positively. The fact that his testimony was somewhat shaken upon cross-examination might well have been argued to the jury, but is of no importance here. The testimony was amply sufficient, if believed by the jury, to support a finding in favor of the plaintiff upon this issue.

It is contended that the evidence is insufficient to support the implied finding of negligence on the part of the driver of the truck. One witness, who at the time of the accident was driving easterly on Colorado Street, about half a block in the rear of the plaintiff, testified that the truck in question passed her going at the rate of about thirty miles per hour; that “they turned in and then out again to the left and went in front of me, and then turned out again. When they turned out again the boy was lying on the pavement. The truck did not stop.” Another witness testified that no horn was blown, and further described the accident as follows: “I should say the truck was from three to four feet from the curb when I first saw it. The truck swerved in nearer the curb when it struck the boy. I do not think it could have helped see the boy. There were two men on the truck. They were looking ahead as far as I could see. The truck crowded the boy into the curb. When the boy was hit he did not have a chance to get on to the sidewalk, so you can judge how close the truck must have been.” This testimony was clearly sufficient to support the finding of negligence, and the circumstance that some discrepancy was developed in the testimony of these two witnesses upon cross-examination was a consideration which addressed itself to the jury in the court below, but is of no moment here.