Fisk v. Poplin

LANGDON, P. J.

is an appeal by the defendant from a judgment against him for $682.75, recovered by the plaintiff as damages for personal injuries, alleged to have been caused by the negligent driving of defendant’s automobile, which resulted in a collision between it and the plaintiff, causing her injury. The appellant assigns as error the ruling of the trial court in denying his motion for nonsuit, made at the end of plaintiff’s case, and also assigns as error certain findings of the trial court, under the claim that such findings are not sustained by the evidence. Both contentions may be considered together, as both involve a discussion of the evidence appearing in the record, which is favorable to the contentions of the plaintiff.

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Conflicts in the evidence could not be considered upon a motion for non-suit, and, in view of the findings of the trial court—which were favorable to the plaintiff—we are not concerned with the evidence which may appear in the record to support the

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defendant’s contentions, as our examination of the evidence must end upon finding therein substantial support for the findings of the trial court.

At the time of the accident, the plaintiff was crossing Hill Street at its intersection with Sixth Street, in Los Angeles. Hill Street runs north and south and crosses Sixth Street at right angles. There are double street-car tracks on each street. The plaintiff was crossing Hill Street from east to west on the north side of Sixth Street. When she had reached a point on the north-bound tracks on Hill Street she was struck by defendant’s automobile, which was going north on Hill Street. The court found that the plaintiff exercised ordinary and proper care for her own safety, and that the negligent acts of the defendant were the direct and proximate cause of the accident.

These findings are supported by plaintiff’s testimony that, when near the curb on the east side of Hill Street, she looked up and down the street and saw no vehicles whatever coming ; that she looked ahead at the street-car coming to a stop on the tracks on the west side of Hill Street, “except I looked both ways as I stepped from the curb and there were no vehicles whatever within my sight.” It is contended by appellant that this testimony is contradicted by the physical facts. Appellant assumes, without any evidence in the record therefor, that defendant’s automobile was on the south line of Sixth Street at the instant that the plaintiff started to cross the street, and then he argues that if plaintiff had looked she must have seen it. He further argues, in this connection, that the finding of the court and the testimony of the several witnesses that the defendant was going at the rate of fifteen miles an hour are contradicted by the physical facts. He points out that if the machine had been going at the rate of fifteen miles miles an hour and had left the south line of Sixth Street at the instant plaintiff started across the street, it would have passed the point of collision before plaintiff reached it in view of the admitted measurements of the street, and the admitted speed at which plaintiff was walking. We may not, however, assume that the automobile left the south line of Sixth Street at the instant plaintiff started across the street, in the absence of evidence upon this point, and in contradiction of the findings of other facts