Harris v. Union Ice Products

• Decision Date: 11 December 1959
• Citation: 1 Cal.Rptr. 287,176 Cal.App.2d 132
• Court: California Court of Appeals Court of Appeals
• Parties: Sherman HARRIS and Sherman Harrls, as Guardian ad litem of Charles Paul Harris, a minor, Plaintiffs and Appellants, v. UNION ICE PRODUCTS, Union Ice Company, James P. Kelly, et al., Defendants and Respondents. Civ. 5969.

Page 287

1 Cal.Rptr. 287

176 Cal.App.2d 132

Sherman HARRIS and Sherman Harrls, as Guardian ad litem of Charles Paul Harris, a minor, Plaintiffs and Appellants, v. UNION ICE PRODUCTS, Union Ice Company, James P. Kelly, et al., Defendants and Respondents.

Civ. 5969.

District Court of Appeal, Fourth District, California.

Dec. 11, 1959.

Shaw & Barnett, John Morgan, Riverside, Russell E. Parsons, Beverly Hills, for appellants.

Thompson & Colegate, Robert D. Allen, Riverside, for respondents.

SHEPARD, Justice.

This is an action for money damages for personal injury. Defendants had judgment in the trial court and plaintiffs appeal. Plaintiffs also purport to appeal from the order denying their motion for a new trial. Since the order denying the motion for new trial is not appealable the attempted appeal therefrom must be and is dismissed. (See, Sec. 963, Code Civ. Proc.)

The only contention presented to this court by appellants is that the evidence is insufficient to support the verdict and judgment.

'When there is substantial evidence or any inference to be drawn from the evidence to support the findings of the trial court, an appellate court will not make determinations of factual issues contrary to those made by the trier of fact.' Smith v. Bull, 50 Cal.2d 294, 306 , 325 P.2d 463, 471.

'The rule as to our province is:

'In reviewing the evidence * * * all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary * * * principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court." In re Estate of Bristol, 23 Cal.2d 221, 223 , 143 P.2d 689, 690.

With these oft repeated rules in mind the record before us shows the facts in this case to be that plaintiff Sherman Harris is the manager of a restaurant known as Laurye's Steak Ranch, which is located on the south side of Highway 101, one mile west of Cathedral City, in Riverside County. Plaintiff Charles Paul Harris is the son of plaintiff Sherman Harris and his wife Arlene Harris, and at the time of the accident herein complained of was about eighteen months old. The restaurant has a general parking area with markedoff spaces for customer and employee parking. Black-top pavement was installed in this parking area and on the west side of the restaurant about six months prior to the accident. There is a service entrance for tradesmen to take in their goods on the west side of the restaurant. The restaurant was built in 1948 and during the whole of the ten years of its existence the service entrance has been in the same position. Plaintiffs' family lives in an apartment the nearest wall of which is about 50 feet west of the service entrance to the restaurant. The area between the buildings and also to the north of the apartment, as is above referred to, was black-top pavement. The distance between the buildings was not entirely open as an oleander hedge was growing near the west wall of the restaurant. The yard adjacent to the south side of the apartment was surrounded by a hedge but was unfenced. On the black-top near the front of the service entrance...