Brewer v. Southern Pacific Co.

CRAIL, P. J. These two cases come before us on appeals from judgments of nonsuit entered at the close of the plaintiffs’ testimony in actions for damages resulting from the collision of decedent’s automobile with the gondola car of the defendant.

The contention of the plaintiffs is that the questions at issue should have been submitted to the jury. The defendant contends that under the facts and circumstances in evidence as a matter of law the defendant was not guilty of negligence and that as a matter of law the plaintiff was guilty of contributory negligence.

“The rules governing us in reviewing a judgment entered after granting a motion for nonsuit are clearly stated in Berger v. Lane, 190 Cal. 443, at page 452 [213 Pac. 45, 49], as follows: ‘ Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiffs. Where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view most favorable to plaintiffs. If contrary evidence has been given it must be disregarded. (Estate of Arnold, 147 Cal. 583 [82 Pac. 252].) The plaintiff must also be given the benefit of every piece of evidence which tends to sustain his averments, and such evidence must be weighed in the light most favorable to plaintiff’s claim. (Anderson v. Wickliffe, 178 Cal. 120 [172 Pac. 381].) Evidence, whether erroneously admitted or not, if relevant to the issues joined, must be given the credit and benefit of its full probative strength, and any question arising from the fact of variation between the evidence of the witnesses cannot be raised or considered. The evidence must be taken most strongly against the defendant, and if the plaintiff has introduced proof sufficient to make out a prima facie case under the allegations of his complaint the motion, if made upon the close of the case, should be denied. ’ ” (Bosqui v. City of San Bernardino, 2 Cal. (2d) 747, 760 [43 Pac. (2d) 547].)

The defendants maintain a double track railway down the middle of Alameda Street. The street runs in a general north and south direction and at the poim; where the accident occurred was paved for a width of fifty feet. At about [2534]:30 A. M. on August 13th the decedent was driving a truck and trailer in a northerly direction on this street when he ran into two gondola freight cars which the defendant had left standing on the east track. The truck was a gasoline tank truck and a fire immediately followed the collision, which caused his death.