Click v. Southern Pacific Co.

BARNARD, P. J.

On December 21, 1929, a collision occurred between an automobile owned by defendant Henry Wilburn Martin and driven by defendant Clara Edith Martin, and a railroad train owned and operated by the other defendants herein. One Mae Lilly Click was a passenger in the automobile referred to and in that collision she received injuries which later caused her death. This action was brought by the plaintiffs, one of whom was her husband and the other her minor son, to recover damages

[529]

suffered on account of the death of the said Mae Lilly Click. The action was tried before a jury and resulted in a verdict and a judgment in favor of the plaintiffs and against the defendants Southern Pacific Company, a corporation; Joe E. Me Comas and H. R. Pierce, and .in favor of the defendants Martin. An appeal was taken by the defendants against whom a judgment was entered, the appeal being both from the judgment against them and from the judgment in favor of the defendants Martin. The respondents Martin have moved to dismiss the appeal in so far as they are concerned, on the ground that the appellants are not parties aggrieved by the judgment in favor of these respondents, and that the appellants have no right of appeal from that particular part of the judgment.

Only the party aggrieved by a judgment may appeal therefrom. (Sec. 938, Code Civ. Proc.) In

Blackwell

v.

American Film Co.,

189 Cal. 689 [209 Pac. 999, 1003], a case arising out of a collision between a stage and an automobile and in which the owners of both vehicles were joined as defendants, the court said: “The next contention of appellant is that the evidence does not justify the implied finding that the stage was not being operated at an excessive rate of speed and that such rate of speed was not the proximate cause of decedent’s injuries. This point cannot be raised by appellant. If both defendants were negligent and their negligence contributed to decedent’s death, appellant cannot complain that respondent United Stages was exonerated by the jury, for they are both jointly and severally liable.

(Horgan