Huntley v. Santa Clara County

• Decision Date: 02 March 1959
• Citation: 335 P.2d 722,168 Cal.App.2d 298
• Parties: Betty Mae HUNTLEY, James Huntley, Gerald Huntley, Sharon Huntley and Judie Mae Huntley, minors, by Betty Mae Huntley, their guardian ad litem, Plaintiffs and Respondents, v. COUNTY OF SANTA CLARA et al., Defendants. Central Fire Protection District of Santa Clara County and Joseph Michael Alello, Defendants and Appellants. Civ. 17904.
• Court: California Court of Appeals Court of Appeals

Page 722

335 P.2d 722

168 Cal.App.2d 298

Betty Mae HUNTLEY, James Huntley, Gerald Huntley, Sharon Huntley and Judie Mae Huntley, minors, by Betty Mae Huntley, their guardian ad litem, Plaintiffs and Respondents, v. COUNTY OF SANTA CLARA et al., Defendants Central Fire Protection District of Santa Clara County and Joseph Michael Alello, Defendants and Appellants.

Civ. 17904.

District Court of Appeal, First District, Division 2, California.

March 2, 1959.

Hoge, Fenton Jones & Appeal, Edwin D. Jones, Jr., Joan A. Symon, San Jose, for appellants.

Boccardo, Blum, Lull, Niland & Teerlink, Edward J. Niland, Jr., San Jose, for respondents.

DRAPER, Justice.

Jury verdict in this wrongful death action was for defendants. Plaintiffs' motion for new trial was granted upon the ground of insufficiency of the evidence to justify the verdict. Code Civ.Proc. § 657, subd. 6. Defendants appeal from this order.

Decedent, husband and father of plaintiffs, died as the result of collision of his pickup truck with a fire truck of defendant district. The accident occurred a few minutes before 6 p. m. February 26, 1955, a rainy day. The truck, occupied only by driver Aiello, had returned from an alarm to the fire station located on the south side of the Los Gatos-Saratoga Road. Aiello stopped the truck east of the fire station and partly on the highway, the two eastbound lanes of which lie to the south of a planted divider strip. To back the truck into its stall in the station, Aiello turned his front wheels about a quarter turn to the right. He opened the left door and looked westward, seeing no vehicle between himself and the crest of the hill about 300 yards away, turned his view to the right rear-view mirror in order to maneuver the truck to its proper position, and back up at a speed of 2 to 3 miles per hour. Some 10-15 seconds after he began to back, he felt the impact of collision of decedent's eastbound pickup with the fire truck. There was no eyewitness. Position of the two vehicles immediately before the accident, speed of decedent's vehicle, and most of the other facts directly bearing upon the cause of the collision were the subject of inferences. Since the fire truck was moved slightly before measurements were made, there is even dispute as to the point of impact.

An order granting new trial upon the ground of insufficiency of evidence can be reversed only where there is no evidence which would support a judgment in favor of the moving party. Hawk v. City of Newport Beach, 46 Cal.2d 213, 219, 293 P.2d 48; Richardson v. Ham, 44 Cal.2d 772, 775, 285 P.2d 269; In re Estate of Green, 25 Cal.2d 535, 542, 154 P.2d 692. Weighing of the evidence upon such motion is the exclusive province of the trial court, which may draw inferences opposed to those drawn at the trial. Brooks v. Metropolitan Life Ins. Co., 27 Cal.2d 305, 307, 163 P.2d 689.

Plaintiffs are entitled to the benefit of the presumption that decedent exercised due care, which presumption is itself evidence. Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529. This presumption can be dispelled only by uncontradicted 'irreconciliable' evidence produced by the party relying upon the presumption. Scott v. Burke, 39 Cal.2d 388, 394-395, 247 P.2d 313. Evidence of an opposing party called under Code of Civil Procedure, section 2055 does not dispel the presumption. Leonard v. Watsonville Community Hospital, 47 Cal.2d 509, 517, 305 P.2d 36.

Since there is no testimony of any eyewitness, this case turns largely on inferences. Even as to the basic facts, there is dispute. The conflict is even greater as to the inferences to be drawn. In this situation, appellants cannot sustain the doubly heavy burden they have assumed in attempting to establish that the presumption of due care was dispelled by respondents' own witnesses and that the trial court has abused the broad discretion vested in it.

There is room for an inference that the fire truck blocked substantial portions of both lanes of the highway. There is conflict in the evidence and the inferences as to the extent to which the lights of the fire truck were illuminated. It could be inferred that there were other means of getting the fire truck into...