Barry v. Bruce

• Decision Date: 15 February 1962
• Citation: 19 Cal.Rptr. 518,200 Cal.App.2d 335
• Court: California Court of Appeals Court of Appeals
• Parties: John BARRY and Berlie Emma Barry, Plaintiffs and Respondents, v. Gloria BRUCE, Adm'x Estate of James Grady Manning, dec., Defendant and Appellant, and Ronald Lee Edmison, Defendant. Civ. 6643.

Page 518

19 Cal.Rptr. 518

200 Cal.App.2d 335

John BARRY and Berlie Emma Barry, Plaintiffs and Respondents, v. Gloria BRUCE, Adm'x Estate of James Grady Manning, dec., Defendant and Appellant and Ronald Lee Edmison, Defendant.

Civ. 6643.

District Court of Appeal, Fourth District, California.

Feb. 15, 1962.

Jacobs, Jacobs, Nelson & Witmer, by Paul B. Witmer, Jr., Santa Ana, for appellant.

Butterworth & Smith, by Thomas S. Mulligan, Los Angeles, for respondents.

SHEPARD, Justice.

This is an action for damages for the death of a minor son. Defendant appeals from a judgment for plaintiff.

FACTS

On October 8, 1955, near 1:00 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 2-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 Manning. A passenger, Oscar Sonsteng, was with Manning. Both Manning and Barry were killed. While conflicts appear in the evidence, our statement of facts recognizes the rule that all conflicts must be resolved in favor of the judgment. (Butler v. Nepple, 54 Cal.2d 589, 597, 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% alcoholic blood content report on Edmison and discussions between court and counsel indicate the parties had conceded the alcohol blood content on blood tests after the accident to have been .22% in Manning and .10% in Edmison with an acknowledgment that .15% 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.

NEGLIGENCE OF MANNING

First, appellant contends that the evidence did not support the finding of negligence on the part of Manning. She reasons that Manning, being dead, was entitled to the application of the presumption of due care; that the testimony of the persons who arrived after the accident saw no lights on Manning's car and the light switch 'off' and the testimony of Edmison that he saw no lights when the stopped car loomed up in front of him in his traffic lane was insufficient to overcome this and other presumptions. We find no merit in this contention. Ordinarily, questions of negligence, proximate cause and contributory negligence are questions for the trier of fact. (Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 234[12-13], 282 P.2d 69.) Credibility of witnesses and what weight shall be given to different portions of the testimony likewise belong in the province of the trier of fact. (Johnstone v. Morris, 210 Cal. 580, 589, 292 P. 970; State of California v. Day, 76 Cal.App.2d 536, 548, 173 P.2d 399.) 'Whether a particular inference can be drawn from certain evidence is a question of law, but whether the inference shall be drawn, in any given case, is a question of fact * * *' for the trier of fact. (Italics ours.) (Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868, 870.)

'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact.

'When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.'

(Brewer v. Simpson, 53 Cal.2d 567, 583[1, 2], 2 Cal.Rptr. 609, 349 P.2d 289.) The trial court had before it sufficient evidence to find that Manning stopped his car on the main travelled portion of the road at night without lights. This was unlawful. Vehicle Code 627c, now 24803, and 582, now 22504. It produces a presumption of negligence. This...