Climo v. Lamp

MONROE, J. pro tem.* This is an action for damages for personal injuries resulting from a collision of vehicles on September 10, 1956, in the city of Fullerton. The defendant Lamp, an employee of the defendant Concrete Conduit Company, was operating a truck and trailer loaded with concrete pipe upon a through highway. Mrs. Clara Climo was operating an automobile in which the two plaintiffs, James and Thomas Climo, her minor sons, were riding. As she attempted to cross the through highway her car was struck by the truck, resulting in injuries to herself and her sons. Action for damages was commenced by Mrs. Climo and on behalf of her sons. Before the trial the action was dismissed as to Mrs. Climo and [511]proceeded to trial as an action on behalf of the minor plaintiffs only. A jury brought in a verdict for the defendants, and from the judgment thereon plaintiffs appeal.

The plaintiffs and appellants urge as ground for reversal that the verdict was against the evidence and that there was insufficient evidence to support the verdict. In support of this contention it is claimed that the evidence was that the collision was a proximate result of the negligence of defendant Lamp and that therefore the minor plaintiffs are entitled to recover. In order to determine the issues thus raised, we have carefully examined the testimony.

There is no dispute as to the time and place of the collision nor any dispute as to the fact that defendant Lamp was operating the truck and trailer in the course of his employment by the defendant Concrete Conduit Company. It is conceded that the minor plaintiffs, riding in the ear with their mother, are not chargeable with the manner in which it was operated. The sole question, therefore, is the sufficiency of the evidence with regard to the alleged negligence of defendant Lamp.

It is obvious that the burden is upon plaintiffs to establish the negligence by a preponderance of the evidence and that a verdict in favor of the defendants is but a finding that the jury has not been convinced that he was negligent.

It has been frequently laid down that upon appeal the duty of the appellate court begins and ends with the determination of whether there is substantial evidence to support the finding of the trial court or the verdict of the jury. (Owens v. White Memorial Hospital, 138 Cal.App.2d 634 [292 P.2d 288].)

There is considerable conflict in the evidence as to the exact details but it is the province of this court to ascertain whether there was evidence which, if believed by the jury, would support the verdict. It would serve no useful purpose to recite in detail the testimony of the various witnesses. The testimony of Mr. Lamp was in substance that he was proceeding along the through highway approaching the intersection at a speed of some 35 miles per hour. He claimed that he saw the vehicle operated by Mrs. Climo slowly approaching the intersection • that it had evidently stopped in the vicinity of a stop sign which was some considerable distance away from the intersection area. He testified that he assumed that the vehicle would be stopped and not driven in front of his approaching truck and trailer, for the reason that he was too