Schroeder v. McCargar

CONREY, P. J.

Appellants having filed their brief containing a statement of their grounds of appeal, now come the respondents and move for dismissal of the appeal or affirmance of the judgment, upon the grounds that the appeal was taken for delay only, and that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument. (Rule Y, sec. 3.) We shall decide the motion upon consideration of the second ground only.

The injuries of which the plaintiffs complained were received as the result of a collision between an automobile driven by the plaintiff Sehroeder, and another automobile driven by the defendant Self. Immediately preceding the collision the plaintiffs were traveling in a westerly direction on West Third Street in the city of Long Beach, and the defendants were going south on Daisy Avenue. The point of collision was at or near the west line of Daisy Avenue at some point between the north curb and the south curb of Third Street. The judgment was based upon findings that

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appellant Self was negligent in the operation of the automobile driven by him, and that the plaintiffs were free of contributory negligence. Summarized, in their essential substance the contentions of appellants are that the evidence is insufficient to sustain a finding of negligence on the part of defendants; that the evidence establishes contributory negligence of the plaintiffs as a matter of law; and that the damages assessed in favor of plaintiff Smith are excessive.

We find no merit in the contention of appellants, “that negligence in the operation of defendants’ automobile was not proved”. Under this heading appellants say: “As we have pointed out heretofore, both of the plaintiffs testified that ‘ after their Viking automobile was in the intersection they observed the Oakland automobile of the defendants north of the north boundary of the intersection on their right’. If their testimony on the point may be believed, we concede that there would be then a conflict in the evidence.” The credibility of witnesses is a subject for determination by the trial court, and its decision is final, except where the testimony has destroyed itself by its inherent improbability. But in this case there is no compelling proof of physical facts making it impossible for the court to have accepted and believed said testimony of the plaintiffs.