Lucchese v. Spingola

STURTEYANT, J.

This is an appeal by the defendant, John Spingola, from the same judgment that was under consideration in the case of

Lucchese

v.

San Francisco-Sacramento R. R. Co., ante,

p. 242 [289 Pac. 188].

The defendant Spingola asserts that in finding number 12 the court finds all the elements constituting the doctrine of the last clear chance, that said doctrine presupposes that the plaintiff has been guilty of contributory negligence, and, therefore, this plaintiff may not recover against this defendant. Whatever is contained in said finding is addressed to the truck and the train and their drivers. It contains nothing about this plaintiff. Conceding, for the purposes of the argument, that said finding holds that Spingola was guilty of contributory negligence it will not be claimed that his negligence was imputable to this plaintiff. In another finding the court held this plaintiff was not guilty of contributory negligence. There is no conflict.

However, this defendant says the latter finding is not supported by the evidence. He intimates that plaintiff and Spingola were drunk. He quotes the witness Skaggs to the effect that immediately before the accident they were engaged in loud, boisterous talking and therefore heedless of their surroundings. But the plaintiff testified to a contrary story. The conflict was for the trial court and is not to be disturbed by a court of appeal.

It is claimed the plaintiff was negligent because he did not jump out of the truck. He was under no duty to jump before he apprehended danger. He testified that he did not remember anything because he was knocked unconscious. He was seated on the front seat beside the

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driver. The cab had doors and curtains. The latter were fastened. The plaintiff was not familiar with the road. He testified he did not see the track nor the signs. No time arose, therefore, when he was called upon to jump. Moreover the truck was traveling not less than fifteen miles and up to twenty-five or thirty miles per hour. At least during a part of the time, no duty rested on the plaintiff to make a perilous jump in order to free himself of the charge of contributory negligence.