Moore v. Ruth

MUSSELL, J. This is an action for damages for personal injuries and for property damage sustained in a collision between a CMC pickup truck, being operated by plaintiff Charles [71]Moore and an Autocar truck and trailer operated by defendant Berley William. Ruth. The accident occurred on July 11,1953, at approximately 8:55 a.m., on Highway 111, 2 miles south of Mecca, in Riverside County. Both vehicles were being driven in a general northerly direction on said highway. The Autocar truck and trailer, loaded with 16-20 tons of baled hay and traveling between 35 and 40 miles per hour, was overtaking and pulling over to the center line in passing the CMC truck, which was being driven at 25-30 miles per hour, when Moore, who had been driving on the shoulder of the highway, pulled to the left onto the paved portion of the highway, without giving any warning signal. The right front bumper of the Auto-car truck collided with the left rear portion of the CMC pickup, causing injuries to plaintiff Moore and damage to the pickup truck, which was owned by plaintiff Hyatt.

Trial was had by the court without a jury and the court found that the accident was not due to any negligence, carelessness or recklessness of defendant Ruth and that any injuries or damages suffered by plaintiffs were solely and proximately caused by the negligence, carelessness and recklessness of plaintiff Moore. Judgment was entered in accordance with these findings and plaintiffs appeal.

Appellants’ sole contentions on appeal are that there is no evidence to support the trial court’s findings that defendant Ruth was not guilty of negligence and that plaintiff Moore was guilty of contributory negligence.

It is well settled that the weight and sufficiency of the evidence, the construction to be put upon it and the inferences to be drawn therefrom are matters for the trier of the facts and that questions as to the credibility of the witnesses and the determination of conflicts and inconsistencies in their testimony are for the trial judge. (Dillard v. McKnight, 34 Cal.2d 209, 223 [209 P.2d 387, 11 A.L.R.2d 835].) If there is any substantial evidence which will support the conclusion reached by the court, such conclusion cannot be disturbed on appeal. (Estate of Bristol, 23 Cal.2d 221, 223 [143 P.2d 689].)

In Turkovich v. Rowland, 106 Cal.App.2d 445, 447 [235 P.2d 123], it was held that it was the province of the jury to determine the cause of the accident in that case and that when an automobile following another runs into the car in front, negligence is a question of fact and not of law.