Hosi v. La Vey

SCHOTTKY, J. pro tem. This is an appeal from a judgment in favor of defendant in an action for damages for injuries arising out of an automobile accident. The trial court, sitting without a jury, found that defendant was negligent but that plaintiff’s negligence proximately contributed to his injuries.

Appellant makes a number of contentions but they all in effect are that the evidence does not support the judgment in favor of defendant but on the other hand require a judgment in favor of plaintiff. It is a rule too well established to require the citation of authorities that before an appellate tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence adduced, together with every inference favorable to the prevailing party which may reasonably be drawn therefrom, and excluding all evidence and inferences in conflict therewith, it still appears that the law precludes the rendering of judgment in favor of such prevailing party. The evidence must be construed most strongly against the losing party and every favorable inference and presumption which may fairly be deduced from the evidence should be resolved in favor of the prevailing party. The prevailing party’s evidence must ordinarily be accepted as true and evidence which is contradictory must be disregarded. Bearing in mind this familiar rule which is too often not properly evaluated by counsel who insist upon arguing the weight of conflicting [599]evidence before an appellate tribunal, we shall give a brief summary of the evidence.

The accident occurred on a clear day in broad daylight at about 5 :30 p. m. on 16th Street between Mission and Valencia Streets in San Francisco. At the intersection of 16th Street with Mission and Valencia Streets traffic signals were in operation. Between Mission and Valencia Streets there are a number of alleys which do not cross 16th Street. All of these alleys contain a roadway of less than 30 feet, except Julian Avenue which contains a roadway of exactly 30 feet. It was stipulated that the traffic code of San Francisco provides that an alley is a street with a roadway of less than 30 feet. Appellant was a pedestrian and with a companion walked from Mission Street down 17th to one of these alleys known as Hoff Street, then north on Hoff to 16th Street, and thence west on 16th to a point where another of these alleys known as Rondel Place comes to an end at 16th Street. There appellant testified that he looked to the right and to the left and saw no car approaching, so he and his companion proceeded across 16th Street. There is no crosswalk at this point but there was evidence that many people crossed 16th Street there. He testified further than when he had reached a point between the car tracks he again stopped and looked to the right and to the left, that everything seemed to be clear, and that he then continued across the street. At this time respondent was driving westerly on 16th Street between Mission and Valencia at a speed which he testified was 25 miles per hour but which another witness placed at 35 miles per hour. He testified in his deposition, which respondent introduced in evidence, that he did not see appellant until he was 7 or 8 feet from him, that he then put on his brakes and was going about 10 miles per hour when the right side of his car struck appellant. Appellant testified that he did not see respondent until after he was hit by the car. Respondent did not sound his horn. There was evidence that after the impact respondent opened his window and swore at appellant and then drove away, although respondent testified that he did not know he had struck appellant. The accident occurred about 50 feet east of Valencia Street.