Ward v. Gildea

JAMES, J.

In this action plaintiff was awarded judgment for a sum of money. The recovery allowed him was based upon a cause of action in which plaintiff alleged that the defendant had carelessly and negligently operated an automobile so as to cause it to collide with a motorcycle upon which the plaintiff was riding. An appeal is taken from the judgment and also from an order denying a motion for a ■ new trial. [1] As the last-named order was not the subject of a separate appeal, the appeal therefrom should be dismissed.

The principal act of negligence complained of, and which charge was sustained by the court in its findings, was that the defendant at the intersection of two streets failed to observe the requirement of the law that he should yield the right of way to the plaintiff, who was in the act of crossing the intersection from the right of the defendant. (Sec. 20, Motor Vehicle Act of 1915 ; Stats. 1915, p. 397.) Subdivision (e) of the section referred to provides as follows: “(e) . . . the operator of a vehicle approaching an intersection of the public highway shall yield the right of way to a vehicle approaching such intersection from the right of such first named vehicle.”

[2]

It is first contended on behalf of appellant that the complaint was insufficient in its statement of a cause of action in that it did not show that the plaintiff was at the point of intersection when the defendant started to make the crossing. We think that the complaint did in fairly appropriate language show the fact that both parties were at the point of intersection of the streets and about to cross the same. The complaint, too, contained a general allegation that the defendant, “disregarding the rights of the plaintiff and his right of way at said crossing, did wrongfully, carelessly, and willfully drive his said- automobile

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on to and over the said crossing while plaintiff was crossing the same.” The findings of the court also, we think, were sufficiently within the issues made by the pleadings and covered all material issues tendered. The principal contention of defendant is that the findings were not sustained by the evidence. It is urged that not only was the weight of the evidence on the side of the defendant, but that such weight was not opposed by any substantial evidence—in other words, that any testimony shown to have been given by the plaintiff as to the facts material to liability on the part of the defendant was inherently improbable. This contention, of course, is designed to meet the rule of appellate review which forbids an appellate court to disturb a decision of fact where there is any substantial conflict in the evidence. So far as the apparent weight of evidence is concerned, judged by the narrative presented in the record, we may well agree with appellant that there was much evidence, amply corroborated, which tended not only to show that at the time of the accident the plaintiff was traveling on his motorcycle at a high rate of speed, but that at the time defendant entered the intersection of the two highways the plaintiff was at a distance of about 145 feet from such intersection. If such was the situation of the parties, of course the rule of the road announced in the Motor Vehicle Act was not applicable and defendant would have had clear right to make the crossing in advance of the plaintiff. The plaintiff’s testimony as to the situation of himself and the defendant immediately before the accident stands practically alone. [3] However, unless the admitted and uncontradicted facts are sufficient to show that the plaintiff’s testimony could not be true, the decision of the trial judge upon the disputed point is final and conclusive. It is claimed by appellant that respondent’s statements- given in evidence were utterly contrary to the physical facts, as well as the testimony of other witnesses. Leaving out for the moment the character of the damage wrought by the collision, it must be said, we think, that the statement of the plaintiff that he reached the point of intersection simultaneously with the defendant, notwithstanding that other witnesses disputed with him directly as to that fact, furnished some tangible and substantial evidence which w.ould support the finding of the court made in his favor.