Robinson v. Thornewill

DOOLING, J.,

pro

tem.

Appeal from an order granting a new trial after verdict and judgment for defendants.

[499]

The action was one for wrongful death and arose out of a collision between a light Ford truck driven by. decedent and a De Martini truck driven by appellant Patten. One of the grounds specified by the court in its order granting a new trial is insufficiency of the evidence to justify the verdict, and the order cannot therefore be disturbed on appeal if the evidence is in substantial conflict and there is sufficient evidence to support a judgment for plaintiff.

Appellants insist, however, that there was no evidence that defendants were guilty of negligence, and that under the evidence the decedent was guilty of negligence as a matter of law.

The collision occurred on the highway north of Santa Cruz shortly after dark. The decedent, Aldon E. Robinson, was driving his Ford truck in a northerly direction on this highway and appellant Patten was driving the De Martini truck in a southerly direction. No other person was present when the collision occurred except the drivers of the two trucks and consequently the only eye-witness who testified at the trial was appellant Patten. There was testimony, however, of the sheriff of the county that when he arrived at the scene of the accident there were skid marks on the road about seventy feet in length which led to the De Martini truck. At the place where these marks commenced, the right mark was about five feet from the right side of the road and the left mark about six feet from the left side of the road. From this the jury would be entitled to find that the marks were made by the wheels of the De Martini truck and that it was then being driven partly on the left side of the highway. Appellants’ claim, that there is nothing to show that the marks did not commence after the point of collision, is answered by the testimony of appellant Patten himself, that his truck proceeded only thirty-nine or forty feet after the collision, while the skid marks as testified to by the sheriff were seventy feet long. If the jury chose to believe this evidence they could find that the De Martini truck was partly on the left side of the center of the road for at least thirty feet before the collision occurred. We conclude that there was sufficient evidence to support a finding of appellants’ negligence.