54 Cal. App. 2d 762 | Cal. Ct. App. | 1942
As the result of an intersection collision between the antomobile of plaintiff, Clayton J. Goodpastor, and the electric train of defendants, plaintiff received personal injuries and his wife was killed. Plaintiff instituted two actions for damages against defendants, one to recover for his personal injuries, and the other for the death of his wife. The trial court granted defendants’ motions for non-suits, but, thereafter, granted plaintiff’s motions for new trials on the ground of insufficiency of the evidence. From these orders defendants have appealed.
Although given ample opportunity to do so, respondent has filed no brief on these appeals, nor has he or his counsel suggested any theory upon which the orders appealed from can be sustained. In fact, respondent’s counsel in several letters to this court has indicated his belief that by reason of a recent decision of the Supreme Court, hereafter mentioned, the orders cannot be sustained. Nevertheless, respondent has refused to stipulate to a reversal.
The facts as stated in appellants’ brief, which in view of respondent’s failure to file a brief we are permitted to accept as correct (rule V, § 1, of the Rules of the Supreme Court and District Courts of Appeal), are as follows: Plaintiff owned an automobile which he was unable to drive because of an arthritic condition. On the day of the accident he requested his friend, Mr. Conroy, to drive. Plaintiff occupied the seat beside the driver, while Mrs. Goodpastor and Miss Perry were sitting in the back seat. While driving northerly on Webster Street in the city of Oakland, the automobile collided with the electric train of defendants at the intersection of Webster Street with Seventh Street. The evidence shows without conflict, and it was admitted at the trial, that Conroy was guilty of negligence. He failed to stop at the arterial
The orders appealed from are reversed.
Knight, J., and. Ward, J., concurred.