Bowers v. Putman

PLUMMER, J.

The above-entitled actions are based upon a collision between two motor-cars, were tried before the court sitting without a jury, and upon a stipulation that both cases should be tried as one, and that the evidence should apply to both cases, so far as applicable. Findings of fact and conclusions of law were made and judgments entered in both cases for the defendants. From the respective judgments the plaintiff in both cases prosecutes the appeals now being considered herein.

The first action is for damages on account of the death of Alice Alma Lubman caused by the collision referred to herein. The second action is for the sum of $1250 alleged to be the damages to the automobile belonging to the plaintiff. The answer, among other things, presents the question of contributory negligence.

Upon the appeals herein the plaintiff presents in both cases, as grounds for reversal, the following: First, insufficiency of the evidence to justify the decision; second, that the decision is against law.

So far as the authorities cited by the appellant to sustain his appeals in the respective cases are concerned, we may state that a consideration of them fully sustains the position taken by the appellant that .where a conflict of the testimony is relied upon in answer to the assignment that the evidence is insufficient to support a verdict, it must appear that the conflict is substantial. As we read the record in this case, the correctness of the authorities cited, based upon the facts of the respective cases being considered, the respondents do not take issue with the appellant. It being conceded that the law requires a substantial conflict, and not merely the semblance of a conflict, and that the conflict must be upon some question which goes to the real

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merit of the issues presented, and not to immaterial questions, we will proceed with the consideration of the first assignment as to the insufficiency of the evidence to justify the decision of the trial court in the respective cases.

The record shows that on or about the hour of 6 o’clock in the afternoon of July 30, 1926, one Homer A. Bowers was driving westward on a highway leading from Colusa to Williams, in the county of Colusa, the automobile driven by him being" known as a “Willys-Knight.” The deceased, Alice Alma Lubman, was one of three women riding in said Willys-Knight car, and was killed in the collision involved in this action. It is alleged in the pleadings that as Homer A. Bowers was driving said Willys-Knight in a westerly direction, that a “Graham” truck driven by Wayne Crowell, and belonging to the other defendants named, was so carelessly and negligently operated that it collided with the Willys-Knight car, resulting in the death of said Alice Alma Lubman, and the damage to the Willys-Knight car. The testimony shows that just prior to the collision there was another truck preceding the Willys-Knight car, and traveling in the same direction, at a distance of from 75 to 100 feet in advance thereof; that the Graham truck, traveling in the opposite direction, met the truck so preceding the Willys-Knight car, both trucks traveling on their respective right-hand halves of the paved highway; that almost instantly thereafter the collision occurred between the Graham truck and the Willys-Knight car. The testimony shows that the paved portion of the highway was approximately 15 feet in width. It is contended on the part of the plaintiff that upon the meeting of the two trucks the defendant, Wayne Crowell, the driver of the Graham truck, recognized the driver of the other truck and turned to wave his left hand in salutation or as a sign of recognition, and that as he did so he turned the steering-wheel so as to propel the truck in a direction toward the left-hand half of the paved portion of the highway, and in so doing caused the Graham truck to collide with the Willys-Knight ear. The testimony tends to show that the left-hand front of the Graham truck collided with the Willys-Knight car a short distance in front of the rear left wheel. The Willys-Knight car was turned over; Alice Alma Lubman was thrown