159 P. 584 | Cal. | 1916
This is a second appeal. The first will be found reported in
Its principal contention upon appeal is that the evidence upon the second trial was in substantial respects different from the evidence presented upon the first trial, and that the evidence now before this court completely exonerates the defendant from the charge of negligence, and establishes that negligence, if negligence there were, was wholly that of the plaintiff. We are constrained to disagree with the view which the appellant takes of the evidence. It need not be repeated, but a careful reading of it discloses that it is in all respects as strong, and in some respects stronger, in favor of respondent than was the evidence received upon the first trial.
Appellant would have this court adopt the procedure of the supreme court of New York in the case of Gurrie v. New York N. S. Traction Co.,
Both plaintiff and defendant unite in upholding that the following statement of the governing principle, taken fromFujise v. Los Angeles Ry. Co.,
The judgment appealed from is therefore affirmed.
Lorigan, J., and Melvin, J., concurred.