Slappey v. Schiller

KNIGHT, J.

The trial court, sitting without a jury, awarded plaintiff a judgment against the defendants for the sum of $1853.59, in an action for damages based upon the alleged negligence of defendants in operating a motor-truck, and defendants have appealed, contending as sole ground for reversal that the evidence is insufficient to support the trial court’s finding on the issue of defendants’ negligence.

In lieu of a reporter’s transcript, the parties entered into a written stipulation setting forth the material portions of the evidence adduced at the trial, and incorporated the stipulation in the clerk’s transcript. It appears therefrom without dispute that about 9:30 o’clock in the morning a motor-truck owned and operated by defendants crashed into the rear end of plaintiff’s touring car as it stood parked next to and parallel with the curb on the right-

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hand side of the street, hurling the car against plaintiff, who was standing on the curb next to his automobile, knocking him unconscious, breaking his collar-bone and inflicting other serious injuries upon his person. The driver of the truck and two men who were riding with him at the tinie of the accident testified in explanation thereof that they were compelled to turn sharply from their course into plaintiff’s automobile to avoid colliding with an automobile driven by some woman, unknown to them, who swerved directly in front of their truck. But in direct contradiction of such explanation, the “plaintiff and his two witnesses testified”, so the written stipulation states, “that at the time of the accident there was no traffic moving on said highway except the truck of defendants”.

It will be seen at once, therefore, that there is a sharp conflict in the testimony relating to the single question of fact controlling the determination of the case, namely, whether the presence of another automobile caused defendants suddenly to divert their course, as claimed by them. Indeed, defendants concede the existence of such conflict, but they argue that in deciding the disputed question of fact the trial court should have believed their witnesses instead of plaintiff and his two witnesses. In other words, the only foundation for the appeal is a claimed preponderance of evidence in favor of defendants, notwithstanding that the finding of the trial court on the vital question of fact in the case is directly and substantially supported by testimony adduced on the part of plaintiff. Such an appeal is held to be frivolous.