Shannon v. Mt. Eden Nursery Co., Inc.

THE COURT.

Action for personal injuries and damage to an automobile, arising out of a collision at a street intersection. Trial was had before a jury, which resulted in a verdict in favor of the defendants. Motion for a new trial was made and denied. From the judgment and order plaintiff has appealed.

[592]

Appellant bases Ms appeal upon two contentions: First, that counsel for defendant Haiden Auto Rental Service, Ltd., hereinafter designated as the Haiden company, made certain remarks to the jury which it is claimed constituted misconduct; second, insufficiency of the evidence to warrant the verdict. Appellant does not seriously urge the point that there is insufficient evidence in the record to support the verdict, his claim being that such evidence being weak, the claimed misconduct might have been and in all probability was largely, if not absolutely, responsible for the verdict rendered, for which reason the error complained of warrants a reversal of the judgment even though the misconduct alone would not compel a reversal.

It may be said at the outset that in our opinion the evidence going in support of the verdict is not weak. The record shows a substantial conflict on material matters incumbent on the plaintiff to prove, and there was also' substantial evidence adduced by the defendants which, if believed by the jury, prevented plaintiff’s recovery. Appellant’s contention that the evidence is weak is based upon the fact that a greater number of witnesses testified in support of his allegations. The settled and generally understood rule stated in the Code of Civil Procedure, section 2061, subdivision 5, which directs that when the evidence in a civil ease is contradictory the decision must be made upon its preponderance, contemplates that the jury will be controlled by the weight of the evidence, as indicated by the apparent credibility of the witnesses, rather than by their mere numerical preponderance. Witnesses are not counted, but rather their testimony is weighed. By section 2061, subdivision 2, juries are instructed that they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number. (10 Cal. Jur., p. 1141, sec. 361.) As there was a substantial conflict, the verdict of the jury is conclusive upon the issue of the sufficiency of the evidence.