Cowee v. Marsh

VAN DYKE, P. J. Defendant Marsh appeals from a judgment rendered against him and in favor of plaintiffs Cowee, Evans and McNulty for damages resulting from an automobile accident in which three automobiles were involved. Respondent Cowee was driving from Chico toward Oroville, appellant was driving from Oroville to Chico just ahead of a third ear, called the Smith car. The cars being driven by Cowee and appellant sideswiped as they were passing and Cowee’s car, out of control, collided headon with the Smith car. The sole question presented is the sufficiency of the evidence to sustain the trial court’s finding that the negligence of appellant was the sole proximate cause of the collision between his car and Cowee’s car and of the resulting collision between that car and the Smith car. If that question be resolved adversely to appellant then all plaintiffs were entitled to recover.

A prior trial to a jury had resulted in a discharge of the jury for inability to agree. In the second trial, there came into evidence in one way or another, much of the testimony of witnesses at the first trial, all of the depositions of witnesses taken before trial, parts of the evidence at the coroner’s inquest into the deaths of the occupants of the Smith car, and many statements made by witnesses to claim adjusters and to highway patrolmen. Under such circumstances it is not unusual to find that the evidence is not only sharply in conflict from witness to witness but also that the testimony of witnesses developed inconsistencies with their prior testimony and statements. It is appellant’s contention that although there is sufficient evidence to support the trial court’s findings if taken at face value, yet the evidence supporting the trial court’s decision is incredible and that the conflict is apparent rather than real; that the substantial believable testimony when analyzed shows as a matter of law that appellant was free of negligence and that Cowee’s negligence was the sole proximate cause of the accident. Acknowledging the well-known rule that an appellate court will not interfere with the judgment where there exists a substantial conflict in the evidence, appellant frankly relies upon the concept of substantial support as stated in Morton v. Mooney, 97 Mont. 1 [33 P.2d 262], and referred to with approval by our Supreme Court in Herbert v. Lankershim, 9 Cal.2d 409, 471-472 [71 P.2d 220]. Said the Montana court:

[813]“While the jurors are the sole judges of the facts, the question as to whether or not there is substantial evidence in support of the plaintiff’s case is always a question of law for the court (Grant v. Chicago, etc., Ry. Co., 78 Mont. 97 [252 P. 382]), and, in determining this question, ‘the credulity of courts is not to be deemed commensurate with the facility or vehemence with which a witness swears. “It is a wild conceit that any court of justice is bound by mere swearing. It is swearing creditably that is to conclude the judgment.” ’ ”