20 Cal. App. 2d 411 | Cal. Ct. App. | 1937
From a judgment that was rendered
against defendant in an action to recover damages for personal injuries which were alleged to have been caused by the automobile of defendant striking the husband of plaintiff, and which resulted in his death, defendant has appealed to this court.
From a consideration of the evidence that was produced on the trial of the action, as well as from the findings of fact that were made thereon, it appears that, in general, the facts were assumed to be as follows: At a time very shortly preceding the happening of the accident in question, which occurred at about 9:40 o ’clock P. M., apparently it was con-
Defendant’s testimony was to the effect that at about 9:40 o’clock P. M. she arrived in her automobile, which was being operated by her, at the intersection of the two streets. The headlights of her automobile were “completely on”. On reaching the intersection, she made the boulevard stop and observed that no one was within the crosswalk. She paused long enough to observe the crosswalk and all the corners of the intersection and to ascertain that no one was “within
From a consideration of the foregoing, it is concluded that the finding of fact made by the trial court, in effect, that defendant’s automobile struck Mr. Lake and caused the injuries from which he died, in regard to which appellant urges that prejudicial error was committed by the trial court, was warranted by the evidence; and consequently, that appellant’s objection in that' regard cannot be sustained. However, with reference to certain other express findings of fact which were made by the trial court, this court is unable to discover in the evidence, either direct or indirect, testimony that would support them; for example, that, in substance, defendant’s automobile struck Mr. Lake within the pedestrian lane of the intersection. Other than the erroneously admitted testimony that was given by Mrs. Lake, to the effect that when Mr. Lake left his home he said that he was going to return to a drug store some merchandise that he had previously purchased thereat,—coupled with the conjecture that the drug store which Mr. Lake had in mind was the one which was located on one of the corners of the intersection,— the evidence is entirely lacking as to how or in what manner Mr. Lake happened to be in the street at all, to say nothing of the possibility that he ever was within the pedestrian lane.
The judgment should be reversed. It is so ordered.
York, J., and Doran, J., concurred.