Adrian v. Guyette

MARKS, J. —This is an appeal from judgments and orders denying defendants’ motions for judgments notwithstanding the verdicts in the consolidated eases of Sarah and Hilda Adrian, and Martha Adrian against Elbert Ray, A. E. and Alice C. Guyette. The defendant Allen Remy defaulted and the judgments against him are not before us for review.

The case of Sarah and Hilda Adrian has been before us before. (14 Cal. App. (2d) 493 [58 Pac. (2d) 988, 990].) The facts as they then appeared are fully set forth in that decision and may be ascertained by a reading of it. The facts proven at the second trial, which are identical with those established during the first, and appear in that opinion, will not be repeated here. We will devote ourselves to pointing out wherein the evidence in the second trial conflicts with that of the first and also the absence of evidence in the second trial that was offered in the first.

The sole question presented here is the sufficiency of the evidence to support the implied finding of the jury that the negligence of Elbert Ray Guyette was either the proximate or "the concurring cause of the injuries suffered by plaintiffs. The same question was presented on the former appeal, where a judgment in favor of Sarah and Hilda Adrian was under review.

In the earlier case we summed up the evidence on this question and our conclusions as follows:

“The right rear fender of the Remy car was bent inward, the hub of the right rear wheel was bruised and one or more of the wire spokes were broken from the hub at the point of the bruise. It is evident that this damage was caused by the wheel and fender coming into sharp contact with some [308]other object. It is not suggested that the Remy car came into contact with the Chadwick car or that its rear came into contact with the Adrian automobile. As there were only four cars in the proximity of the accident this leaves only the Guyette car which could have caused the damage. Its left front hub cap was missing, but it is admitted that the left front of that car came into contact with the right rear of the Chadwick automobile. Both Remy and young Guyette testified positively that their two cars did not come into contact. . . . However, it is not suggested that the damage to the wheel and fender of the Remy ear was caused at a prior time. It was not caused by either the Chadwick or Adrian automobiles which leaves the Guyette car as the sole remaining probable cause. Prom this the jury might draw the inference that the Guyette automobile came into contact with the rear of the Remy car when the paths of the two cars crossed. . . . After carefully studying the evidence we have reached the conclusion that it is sufficient to support the implied finding of the jury that young Guyette did not have his car under proper control, and did, at the time of the accident, drive it at a speed greater than was ‘reasonable and proper, having due regard to the traffic, surface and width of the highway’ (subd. a, sec. 113, California Vehicle Act), and that his negligence concurring with the negligence of Remy was a proximate cause of the accident and injury of the plaintiffs. (Smith v. Schwartz, 14 Cal. App. (2d) 160 [57 Pac. (2d) 1386].)”