Wynne v. Wright

MARKS, Acting P. J.

This is an action for damages to personal property arising out of a collision between two automobiles at the corner of Frankwood and Manning Avenues in Fresno County, California, at about 5 o’clock in the evening of February 14, 1928. The case was tried before the court without jury, and judgment was rendered in favor of the plaintiff for the sum of $921.75. The sole question presented on this appeal is whether or not the evidence showed the plaintiff guilty of contributory negligence as a matter of law.

The trial court found in favor of the plaintiff and, therefore, if there is any material evidence in the record sustaining its findings the judgment will not be disturbed here.

The Supreme Court has aptly stated the law of contributory negligence, governing here, in the case of

Zibbell

v.

Southern Pac. Co.,

160 Cal. 237 [116 Pac. 513, 515], as follows:

“The law of this state is so well settled that it may be briefly summarized. Contributory negligence is a defense the burden of proving which rests upon defendant.

(Schneider

v.

Market St. Ry. Co.,

134 Cal. 482 [66 Pac.

734]; Hutson

v.

Southern California Ry. Co.,

150 Cal. 701 [89 Pac. 1093].) Therefore in this state it is not incumbent upon the plaintiff—as it is in certain other jurisdictions-—to establish affirmatively that he was free from negligence. It is incumbent upon the defendant to establish the existence of plaintiff’s contributing negligence. Again,

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the question whether or not a plaintiff has been guilty of contributory negligence is usually one of fact for the jury’s verdict.

“ ‘It is only where no fact is left in doubt, and no deduction or inference other than negligence can be drawn by the jury from the evidence, that the court can say, as a matter of law, that contributory negligence is established. Even where the facts are undisputed, if reasonable minds might draw different conclusions upon the question of negligence, the question is one of fact for the jury.’