Barry v. Bruce

SHEPARD, J. This is an action for damages for the death of a minor son. Defendant appeals from a judgment for plaintiffs.

Facts

On October 8, 1955, near 1 a. m., Richard Barry, age 15, was riding as a passenger in a Chevrolet automobile in a southerly direction on Harbour Boulevard about one mile south of Talbert Road in Orange County. His companions were Carl Woodcock and Ronald Edmison, age 17 (called Edmundson in reporter’s transcript). Edmison drove. Suddenly another automobile, which was stopped in Edmison’s travel lane, loomed up in front of him, 100 to 125 feet away. Edmison saw no lights on that car. Edmison’s car struck the parked car, a Plymouth two-door sedan, in the rear, before he had time to remove his foot from the throttle. The driver and owner of the Plymouth was appellant’s deceased, James Man[337]ning. A passenger, Oscar Sonsteng, was with Manning. Both Manning and Barry were killed. While conflicts appear in the evidence, our statement o£ facts recognizes the rule that all conflicts must be resolved in favor of the judgment. (Butler v. Nepple, 54 Cal.2d 589, 597 [7] [6 Cal.Rptr. 767, 354 P.2d 239].)

Attendant evidence showed considerable drinking of alcoholic beverages by all parties concerned during the hours of the preceding evening. There was no conclusive evidence of intoxication. There was some evidence showing a .05 per cent alcoholic blood content report on Edmison and discussions between court and counsel indicate the parties had conceded the alcoholic blood content on blood tests after the accident to have been .22 per cent in Manning and .10 per cent in Edmison with an acknowledgment that .15 per cent was the recognized stage for a clear showing of intoxication. However, we have been unable to discover this evidence or stipulation in the record and counsel have not pointed out where it can be found. No exhibits were brought to this court.

Appellant’s counsel refers to such a stipulation in respondent’s opening statement, but that statement was merely a prediction of what the evidence would show. It was not itself in the form of a stipulation. However, even assuming such a stipulation was presented, it would not materially alter the results.

Witnesses arriving after the accident found Manning’s lights off and the light switch in “off” position. There was evidence of statements made after the accident by Edmison which were in conflict with his trial testimony. The visible evidence on the road indicated the point of impact as on the westerly southbound traffic lane about four feet east of its westerly edge.