Sites v. Howrey

MARKS, J.

Seventh Avenue and Robinson Street are public streets of the city of San Diego which intersect each other at right angles. Seventh Avenue runs north and south and Robinson Street, east and west. Respondent was

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injured in a motor vehicle accident in the intersection of the two streets.

On April 27, 1928, respondent was riding in a Ford delivery truck driven by her husband, Charles Sites. They were traveling east on Robinson Street, to and into the intersection. Appellant was driving a Cadillac car south on Seventh Avenue. A collision occurred between the two vehicles at about the center line of Seventh Avenue at about the point of its intersection with the south curb line of Robinson Street produced across Seventh Avenue. The right rear wheel of the Cadillac came into contact with the left portion of the front of the Ford, which was turned over and the respondent suffered injuries which form the basis of this action. A trial was had before a jury which returned a verdict in favor of respondent in the sum of five thousand dollars, which, on motion for new trial, was reduced to three thousand five hundred dollars.

Appellant presents two grounds for a reversal of the judgment. He urges that the evidence shows contributory negligence as a matter of law on the part of respondent, and particularly her husband and that the judgment is excessive.

The question of contributory negligence is one primarily for the jury. In this case the verdict determined this issue against appellant, and if there is any material and competent evidence in the record supporting the verdict, this court cannot set it aside under the well-settled rules of law of this state, regardless of what conclusion the justices of this court might have reached had they been sitting on the jury, or presiding in the court below, had the case been tried without a jury.

A number of witnesses testified concerning the accident and the circumstances surrounding it. As is usual in such cases, there was a sharp conflict in the testimony. With this conflict we are not concerned, as we need consider only the evidence favorable to the respondent to determine whether or not there is evidence in the record sustaining the verdict, which found that respondent and her husband were not guilty of contributory negligence. In our statement of the facts of the ease we will only concern ourselves with that portion of the evidence bearing on the question of contributory negligence most favorable to the respondent.