Beattie v. Milliken

DORAN, J. This is an action for damages resulting from an automobile collision.

Appellant was driving an automobile on Cucamonga Road in Los Angeles County at night, when an automobile driven by defendant Milliken, in which plaintiff was riding as a guest, collided with the rear end of the automobile operated by appellant. The night was foggy and appellant had stopped her automobile oh the highway for the purpose of cleaning the windshield of moisture which had collected thereon.

It is contended that the evidence fails to show any negligence on the part of defendant and appellant, and further, that the evidence conclusively shows negligence on the part of the respondent proximately contributing to her injuries. These two controversies result principally from the dispute as to whether or not the defendant could have removed her automobile off the highway at the side thereof, and whether or not the plaintiff had negligently failed to caution the driver of the automobile in which she was riding, or to protest at the speed the car was traveling. These questions were presented to the jury on' conflicting evidence and the jury found in favor of plaintiff; such a finding obviously cannot be disturbed on appeal.

It is further contended that the court erred in giving certain instructions; in modifying certain instructions requested by appellant, and in refusing to give certain of appellant’s requested instructions.

[688]Under the evidence presented at the trial, the jury was fairly and adequately instructed on the issues involved, and the record does not justify the assumption that prejudicial error resulted from the trial court’s rulings in this regard.

Judgment is affirmed.

York, J., concurred.

HOUSER, P. J., Dissenting. I dissent. In substance, the principal reason that is assigned by my associates for an affirmance of the judgment is, that with reference to the several issues of the negligence of defendant and the contributory negligence of plaintiff, respectively, the evidence on each of such issues was “conflicting”, and that in such circumstances the implied finding by the jury cannot be disturbed by this court. Where such a condition prevails, especially in an appeal from a judgment that has been rendered in an action for damages that have arisen from personal injuries that have been sustained by the plaintiff therein, in an automobile collision, such a statement may be fairly accurate. But it is strictly true only when the evidence adduced on the trial shows that a real “conflict” exists as to the essential facts in the case. An exception to the general rule exists where it appears that notwithstanding the fact that the evidence adduced in behalf of the plaintiff in the action conflicted with that presented in behalf of the defendant therein, if, after wholly disregarding the defendant’s evidence with reference to such negligence and considering the evidence in that regard introduced by the plaintiff only, it becomes manifest that, as a matter of law, the defendant could not be adjudged guilty of negligence; and in such circumstances, the fact that a jury may have decided to the contrary should neither preclude nor deter an appellate tribunal from exercising its lawful right and duty in the premises. And, conversely, the same rule applies where a question of the contributory negligence of the plaintiff is involved in the action. And so in the instant appeal, if notwithstanding the fact that as to some incidental or immaterial facts the evidence presented on the trial of the action on the one side may not entirely agree with the evidence produced on the other, nevertheless, if in the main and determinative facts no real conflict exists, the fact that the jury may have impliedly