Thompson v. White

FINLAYSON, P. J.

On December 5, 1919, at half-past 6 in the evening, at or near the intersection of Alessandro and Duane Streets, in the city of Los Angeles, Frank Thompson was struck by an automobile owned by the defendant Louis White and driven by the defendant Jules White. From the injuries thus received, Thompson died the next day. His widow brought this action to recover damages for the loss occasioned by her husband’s death, alleging that it was caused by the negligence of the defendants. The case was tried by the court without a jury, judgment was given in favor of defendants, and from that judgment plaintiff appeals.

The court found against plaintiff’s allegation of negligence and likewise found that the decedent was guilty of contributory negligence. Appellant attacks both findings as unsupported by the evidence. If the finding that the decedent was guilty of contributory negligence be supported by the evidence, the finding that defendants were not negligent need not be considered. Such finding of contributory negligence on the part of the decedent, if supported by the evidence, would alone be sufficient to uphold the judgment.

No evidence was adduced by defendants, the case having-been submitted for a judgment on the merits on the evidence introduced by plaintiff. Since the court rendered a decision on the merits, we are bound to uphold the finding of contributory negligence if it can be supported by any reasonable view of the evidence, even though we might be inclined to think the finding should have been the other way.

The evidence, as disclosed by the record, tends to establish the following facts, among others: It was quite dark at the time of the accident; it was misting, and the driver of the automobile had difficulty in seeing through the windshield so as to observe objects in front of him; the automobile,

[175]

traveling in a northerly direction along Alessandro Street— a street which runs in a northerly and southerly direction— was proceeding at a speed o£ from twelve to fifteen miles an hour just before it struck Thompson. The lights of the machine, which is a Ford, were connected with the motor, and because of the low rate of speed at which the car was traveling the lights were dim. By reason of the mist on his windshield and the dimness of his lights, the driver of the car was not aware of Thompson’s presence until the latter was about four feet in front of the machine.