Bidwell v. L.A. & San Diego Beach Ry.

SHAW, J.

The appeals of the defendant are from the judgment and from an order denying a new trial.

The action was to recover damages alleged to have been caused to plaintiff by the negligence of the defendant. The complaint alleges that the plaintiff was driving his automobile along India Street in San Diego, at the intersection of that street with C Street, that the defendant was operating a

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railroad upon a track laid along C Street and crossing said intersection, that while plaintiff was crossing the said car line in his automobile, the defendant ran a motor car backward on said car line without lights thereon or therein, and so carelessly and negligently managed said car that it struck plaintiff’s automobile, greatly damaging the same and causing serious bodily injuries to plaintiff. The complaint is in two counts, one for the recovery of damages for the bodily injuries, the other for the damage to the automobile. The defendant pleaded contributory negligence of the plaintiff as an affirmative defense. The answer also denied the allegations of the complaint relating to the negligence of the defendant.

The defendant claims that the evidence is insufficient to prove that the defendant was negligent as alleged. The plaintiff testified, in effect, that as he was driving his automobile over the said crossing, along India Street, crossing the said car track at right angles, the defendant's ear struck the automobile and caused the injuries complained of; that it was a dark night and that he did not see the car until it was within five feet of him, that the car had no headlight or rear light and was not lighted on the inside or at all, that the night was so dark that he could not see the ear, that no gong or bell was sounded, or other warning given, by the persons in charge of the car or by any other person, that the lights on the automobile were lighted at the time, that the car, after striking the automobile, ran about fifty feet further along the track, pushing the automobile with it, before it came to a stop. It also appeared that its rear truck had then left the track and that the car was backing along the track when the collision occurred. Two other persons who were riding in the automobile with Bidwell at the time of the accident, and a person who saw the accident while standing near the intersection, also testified, corroborating the plaintiff in all material particulars. This evidence is sufficient to support the allegation that the defendant’s negligence was the cause of the accident. There was evidence of witnesses produced by the defendant which flatly contradicted the direct testimony of plaintiff’s witnesses concerning the absence of lights and the failure to sound the gong or bell. The finding of the jury upon this conflicting evidence cannot be reviewed on appeal. We must, therefore, hold that the evidence of the defendant’s negligence was sufficient to support the verdict.