Turner v. Clennell

CRAIL, P. J. This appeal is from a judgment in favor of the defendants in an action arising out of an automobile accident. The appeal is on the judgment roll alone, and “the plaintiffs contend that the findings of fact, conclusions of law and judgment are so inconsistent and impossible [not with themselves, but] in relation to physical facts that said judgment should be reversed”.

In order to make this unusual contention clear it will be well to state it more fully, again in the language used by the plaintiffs:“ The defendant Hugh S. Clennell, driving a Chrysler automobile in a westerly direction on Yucca Street, he said at less than 15 miles an hour, with good brakes with which he could stop within 7 feet, saw the Chevrolet about 40 feet to the north of the intersection of said streets, when he lacked 10 feet of entering the easterly line of Las Palmas. He testified that the Chevrolet was traveling at the rate of 30 miles per hour, and the plaintiff’s daughter testified that she slowed down and stopped at said intersection. Las Palmas Avenue is admitted to be 40 feet in width and Yucca Street is 30 feet wide, from curb to curb. . . . The inconsistency arises from the fact that upon these undisputed measurements, had Miss Turner not slackened her speed át all, her Chevrolet would have traveled about 50 feet, in one second, and continued on. . . . ” Much of the testimony above set forth is by some strange reason included in the findings. (Defendants contend that the findings were prepared by the plaintiffs, and this is supported in the record by the fact that the findings were served on the attorneys for the defendant before they were signed by the judge.)

The length of time it would require defendant Clennell to coordinate his nerves and muscles after he first saw the danger is not taken into consideration in plaintiffs’ calculations. Furthermore, the findings covering the above evi[738]dence are merely evidentiary findings and not findings of the ultimate facts in the case. Findings, if any, with regard to the respective speeds of automobiles engaged in a collision are ordinarily merely approximations. And it is well settled that the mere circumstance that some of the probative facts are inconsistent with the ultimate facts will not prevent the ultimate facts from controlling where such probative facts are not shown by the findings to be the only facts proved and from which alone the court finds the ultimate facts. (2 Cal. Jur. 872.) No such showing appears in the record before us. Furthermore, an appellate court will not indulge in lengthy and dubious computations to determine that there is a physical impossibility of the evidence being true. (2 Cal. Jur. 938.) Manifestly the judgment cannot be reversed upon this contention.