Dorman v. Taylor

SCHOTTKY, J. pro tem.—The widow and minor children of Albert Dorman commenced an action to recover damages for his death which resulted from a collision on an oiled county road in Shasta County between a 1936 Chevrolet sedan driven by decedent and a cattle truck owned by defendant J. W. Taylor and operated by his employee, Alvin Chase. A second cause of action sought damages for injuries sustained by David Dorman, a son of decedent, in the same collision.

After a trial before the court without a jury, the court found that the collision was proximately caused by the negligence of Alvin Chase, the driver of the truck, without any negligence on the part of decedent, and judgment was entered in favor of the widow and children for $32,700 and $759.16 funeral expenses, and in favor of David Dorman for $2,500. Defendants’ motions for a new trial were denied and they have appealed from said judgments.

The principal contention made by appellants is that the evidence is insufficient to support the judgments. They argue that the only rational conclusion that can be drawn from the evidence is that the collision was caused by the negligence of decedent when he (as appellants assert) cut across the sharp curve where the collision occurred and drove his automobile into appellants’ truck.

As we said in Anderson v. Wagnon, 110 Cal.App.2d 362 [242 P.2d 915], at pages 363-364:

“It is a rule too well established to require the citation of authorities that, before an appellate tribunal is justified in [507]reversing a judgment upon the ground of 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 be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes such prevailing party from recovering a judgment. The evidence must be construed most strongly against the losing party. 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 we are again constrained to state is too often disregarded by many counsel who insist upon arguing conflicting evidence before an appellate tribunal, we shall give a brief summary of the evidence.