Dorman v. Taylor

• Decision Date: 03 October 1952
• Citation: Dorman v. Taylor, 248 P.2d 441, 113 Cal.App.2d 505 (Cal. App. 1952)
• Court: California Court of Appeals
• Parties: DORMAN et al. v. TAYLOR et al. Civ. 8150.

Page 441

248 P.2d 441

113 Cal.App.2d 505

DORMAN et al. v.TAYLOR et al.

Civ. 8150.

District Court of Appeal, Third District, California.

Oct. 3, 1952.

Hearing Denied Nov. 25, 1952.

Peters & Peters, Chico, for appellants.

L. C. Smith, Redding, for respondents.

SCHOTTKY, Justice pro tem.

The widow and minor children of Albert Dorman commenced an action to recover damages for his death which resulted from a collision on an oiled county road in Shasta County between a 1936 Chevrolet sedan driven by decedent and a cattle truck owned by defendantJ. W. Taylor and operated by his employee, Alvin Chase.A second cause of action sought damages for injuries sustained by David Dorman, a son of decedent, in the same collision.

After a trial before the court without a jury, the court found that the collision was proximately caused by the negligence of Alvin Chase, the driver of the truck, without any negligence on the part of decedent, and judgment was entered in favor of the widow and children for $32,700 and $759.16 funeral expenses, and in favor of David Dorman for $2,500.Defendants' motions for a new trial were denied and they have appealed from said judgments.

The principal contention made by appellants is that the evidence is insufficient to support the judgments.They argue that the only rational conclusion that can be drawn from the evidence is that the collision was caused by the negligence of decedent when he as appellants assert) cut across the sharp curve where the collision occurred and drove his automobile into appellant's truck.

As we said in Anderson v. Wagnon, 110 Cal.App.2d 362, at pages 363-364, 242 P.2d 915, at page 916:

'It is a rule too well established to require the citation of authorities that, before an appellate tribunal is justified in reversing a judgment upon the ground of the insufficiency of the evidence, it must appear from the record that, accepting the full force of the evidence adduced, together with every inference favorable to the prevailing party which may be drawn therefrom, and excluding all evidence in conflict therewith, it still appears that the law precludes such prevailing party from recovering a judgment.The evidence must be construed most strongly against the losing party.Every favorable inference and presumption which may fairly be deduced from the evidence should be resolved in favor of the prevailing party.The prevailing party's evidence must ordinarily be accepted as true, and evidence which is contradictory must be disregarded.'

Bearing in mind this familiar rule, which we are again constrained to state is too often disregarded by many counsel who insist upon arguing conflicting evidence before an appellate tribunal, we shall give a brief summary of the evidence.

The accident happened on a sharp turn of a narrow oiled county road known as the Redding-Igo Road, following a snowstorm.There was snow and sleet on the sides of the road.The appellants' cattle truck was traveling towards Redding, and in order to negotiate the curve the driver would have to turn his truck to his right.The deceased was traveling toward Igo and in order to negotiate the curve would have to turn to his life.Robert Dorman, a son of decedent, who was following about 150 feet behind his father's car, testified:

'Q.And did you see the truck come around the corner?A.I saw the truck come around the corner, yes.

'Q.And could you see the speed with which it was traveling?A.It came in like a flash.I couldn't say how fast it was going.

'Q.Now did you observe the back end of the truck?A.When it came around the corner the back end was bouncing up and down like he had his brakes on and he couldn't make the turn, he was going too fast.

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'Q.Where was your father traveling with respect to his side of the road at the time of the accident?A.He was traveling about a foot from the shoulder.

'Q.Now when you say a foot, what part of his car would be a foot from the shoulder?A.His right-hand side.

'Q.And how fast was your father traveling?A.Well, I would say between 35 and 40.

'Q.At the time of the accident?A.No, not at the time of the accident.

'Q.I am talking now about at the very moment of impact, how fast was your father going?A.I would say between 25 and 30.

'Q.And what happened when the accident occurred?What followed the accident; that is, were you able to observe the movements of the truck and your father's car after the accident?A.The truck came around and hit him on his left-hand side and turned him in a half-spin on the road and headed him in the...