Nakamoto v. Testino

HOUSER, J. This appeal is based upon a judgment that was rendered in pursuance of a verdict returned by a jury in an action brought by the plaintiffs against the defendants for the recovery of damages alleged to have ensued to the plaintiffs by reason of the death of one Fusa Nakamoto, who was killed in a collision that occurred between her as a pedestrian and an automobile that was being operated at the time of such collision by defendant Alexander Testino.

Appellants urge several reasons as being sufficient for a reversal of the judgment; each of which being primarily dependent upon a conclusion by this court that the admitted facts incontrovertibly show that in the operation of his automobile at the .time when the accident occurred, defendant Alexander Testino was guilty of negligence that proximatel[267]y caused the death of Fusa Nakamoto. On the other hand, the respondents assert that the evidence clearly established the fact that at all times in question, defendant Alexander Testino operated his automobile in a careful and prudent manner; that the jury so found; and that its verdict is conclusive as to that fact; consequently that the foundation for each of the points presented by the appellants being destroyed, such points are of no avail. Moreover, that the special defense to the action that was interposed by the defendants of contributory negligence on the part of Fusa Nakamoto was in the same manner decided by the jury in the affirmative, and that likewise a decision by the jury in that regard, based upon substantial evidence to the effect that such contributory negligence existed on the part of Fusa Nakamoto was not only conclusive as to that ultimate fact, but also rendered immaterial any question as to the assumed (but not conceded) negligence of Alexander Testino. In that connection, in their reply brief appellants admit that “if the deceased was guilty of contributory negligence, the plaintiffs would not be entitled to recover, ... Thus, for the purpose of this appeal, the preliminary question is narrowed to a determination of whether the evidence adduced on the trial of the action was sufficient to authorize a finding that Fusa Nakamoto was guilty of contributory negligence.

The accident occurred at night on an east-and-west paved highway (and not at any street or road intersection), which Fusa Nakamoto was attempting to cross “at an angle” in a southerly direction. The automobile that was operated by Alexander Testino had its headlights burning; was traveling in an easterly direction; and just before colliding with Fusa Nakamoto, was passed by another automobile, likewise with its headlights burning, that was traveling westerly and was driven by a Mrs. Hulett. In part, Mrs. Hulett testified as follows: