Jensen v. Fish

STURTEYANT, J.

The plaintiffs, as husband and wife, brought an action against the defendants to recover damages for personal injuries sustained by the plaintiff wife in an automobile accident. The plaintiffs recovered a judgment and the defendants have appealed under the new method.

In the charging part of their complaint, the plaintiffs aver that at the time of the accident they were traveling in a Ford sedan in the public road leading from San Jose to Oakland; that the defendants were operating a certain automobile bus; that at the time of the accident the defendants so carelessly, negligently, and unskillfully drove, operated, and ran said automobile bus that said bus collided with and struck the Ford sedan and forced, crowded, and knocked it and the occupants thereof off the road. In support of their pleading, evidence was introduced by the plaintiffs to the effect that the defendants’ bus approached from the rear at a speed estimated, by different witnesses, at from thirty to thirty-seven miles an hour; that the driver gave no signal of warning; that on meeting up with the Ford sedan the driver of the bus turned to the left, and, when immediately ahead of the Ford sedan, swerved' the bus to the right at an angle estimated at from sixty to seventy degrees, and that the Ford sedan, although at that time traveling with its left wheels on the roadbed proper and its right wheels on the right-hand shoulder, swerved still more to the right and later turned over in a ditch on the right-hand side. The jury returned a general verdict and certain special verdicts. The general verdict was in favor of the plaintiffs and the special verdicts were as follows: (1) The defendants’ stage did not actually strike and knock plaintiffs’ automobile from the highway;

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(2) it did strike or come in contact with the plaintiffs’ car; (3) it did force plaintiffs’ automobile off the highway; and (4) it did crowd plaintiffs’ automobile off the highway.

[1]

In their first point the appellants strenuously insist that the automobile bus did not touch the Ford sedan. However, there was evidence both ways and the jury, in its special verdict No. 2, found against the defendants on that issue. There was such a reasonable conflict in the testimony that we are not at all inclined to take the view that this case, in this respect, does not fall within the rule so often repeated that appellate courts have no right to disturb the verdict of the jury when the evidence is conflicting. Furthermore, if we should hold that the second special verdict is not sustained by the evidence, nevertheless the judgment must stand, for it is supported by the general verdict and special verdicts Nos. 3 and 4.