Van Der Most v. Workman
| Decision Date | 06 November 1951 |
| Citation | 236 P.2d 842,107 Cal.App.2d 274 |
| Court | California Court of Appeals Court of Appeals |
| Parties | VAN DER MOST v. WORKMAN. Civ. 18311. |
Clifton A. Hix, San Pedro, for appellant.
Clark Heggeness, Long Beach, for respondent.
Defendant has appealed from a judgment against him for $3,500 entered after trial before the court, sitting without a jury, in an action for personal injuries sustained by the plaintiff when she was struck by an automobile operated by the defendant. He has also attempted to appeal from the order denying his motion for a new trial.
It is contended that the evidence was insufficient to establish negligence on the part of defendant; that the evidence discloses contributory negligence on the part of plaintiff; that the findings of fact are unsupported by the evidence; that a statement of the trial judge at the close of the trial shows that he 'violated defendant's substantial rights'; and that it was error to deny defendant's motion for a new trial.
On the date of the accident, January 22, 1944, plaintiff was ten years of age. She and her brother Alvin were passengers on a bus proceeding south on Capitol Drive in San Pedro. The bus stopped at the intersection of Capitol Drive and Senate Drive, where plaintiff alighted. She remembered nothing concerning the accident until she awoke in the hospital.
Senate Drive, running in an easterly and westerly direction, intersects Capitol Drive from the west, forming a 'T' intersection. The bus stopped at the northwest corner of the intersection, opposite the sidewalk on the north side of Senate Drive. Plaintiff was attempting to cross to the east side of Capitol Drive, having walked in front of the standing bus, when she was struck by defendant's automobile, which was coming from the north and passing the bus on the left side. Plaintiff's brother testified that his sister got off the bus ahead of him. When he was standing near the curb at the northwest corner he saw his sister approximately fifteen feet out into the street, where she was struck. He estimated the speed of defendant's automobile at thirty to thirty-five miles per hour, and said it was 'going pretty fast'. He saw his sister, after the impact, 'fly through the air' and come to rest at a point near the southwest corner of the intersection. He did not hear the defendant sound his horn. The defendant's automobile came to a stop at a point approximately one hundred feet south of the intersection.
The defendant, corroborated by his wife, who was riding with him, testified that he passed the bus at a speed of fifteen miles per hour. He knew that the bus had pulled over to let off passengers. He first observed the plaintiff just prior to the impact, but did not see whether she was walking, running or standing. That he thought she ran into the front door of his vehicle.
Police officers who arrived at the scene about five minutes after the accident, found a 'brush mark' in back of the upper hinge on the right front door and blood on the pavement nine feet south of the north curb of Senate Drive and seventeen feet east of the west curb of Capitol Drive. Capitol Drive is thirty to thirty-five feet wide at the intersection.
It cannot be held that the findings of the trial court are without evidentiary support. The credibility of witnesses, the value and effect of testimony, and the inferences to be drawn from evidence, contradicted or uncontradicted, are matters for the decision of the trier of fact; and this court may not disturb the conclusions of the trier of fact unless it can say that, viewing the evidence in the light most favorable to the prevailing party and indulging in every legitimate inference which may be drawn therefrom in favor of the prevailing party, the result is a conclusion that there is no substantial evidence to support the verdict or decision. This we cannot do in the present case. There is substantial evidence that plaintiff was in a crosswalk when struck and that defendant's car was moving at thirty to thirty-five miles per hour. The testimony of defendant and his wife raised a conflict which was resolved by the trier of fact, who found negligence in defendant's failure to yield the right of way. The physical facts ascertained by the investigating officers did not compel an inference that the child was not in the crosswalk when struck, but would admit an inference of equal validity that she was in the crosswalk and almost to the middle of the street she was attempting to cross. Further, the distance the child was thrown, according to the testimony of her brother, supports an inference as to the speed of the car. Defendant's speed, his knowledge that the bus had...
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