Deagle v. Shane

LUCAS, J.,

pro

tem.

The only point urged upon this, an appeal from a judgment for damages in favor of respondent and against appellant in the sum of fifteen thousand

[491]

dollars for the death of respondent’s father, is that the evidence is insufficient to sustain the judgment.

The decedent, at the time he received the injuries from which he subsequently, died, was riding as a guest in an automobile driven by defendant Davidson. At the intersection of Broderick and Post Streets in the city of San Francisco Davidson’s ear collided with the one driven by his co-defendant Shane, appellant herein. The complaint charges them as joint tort-feasors, and the jury, by rendering a verdict against both, found each guilty of negligence contributing to the accident and the death resulting therefrom. The negligence, if any, of both Shane and Davidson lay in the speed at which they drove and the manner in which they operated their respective automobiles. On the question of excessive speed and on the question of who first entered the intersection, claiming thereby the right of way, the evidence is conflicting.

Appellant recognizes the well-established rule that an appellate court will not disturb a verdict of a jury or the findings of a court when there is a real conflict of evidence on material points and when there is some evidence to support the verdict or findings, but insists there is no “real” conflict here and that the testimony relied upon by respondent to create a conflict amounted to “mere swearing”, as those words are used in the case of

Zibbell

v.

Southern Pac. Co.,

160 Cal. 241, 242 [116 Pac. 513].

The case of

Keyes

v.

Hawley,

100 Cal. App. 53 [279 Pac. 674], wherein the District Court of Appeal reversed a judgment for plaintiff in a somewhat similar case, is principally relied upon by appellant as authority for a reversal herein. In the Keyes case, however, the court said: