Garlinghouse v. Merkle , 135 Cal. App. 46 ( 1933 )

This is a motion presented under Rule V, section 3, of the Rules for the Supreme Court and District Courts of Appeal, to dismiss appeal or affirm judgment.

Plaintiff brought this action to recover damages incurred by reason of the negligence of defendant Mrs. Frank Merkle, Jr., in the operation of an automobile, whereby said automobile collided with an automobile driven by the plaintiff, with resulting injury to the plaintiff.

[1] The sole ground of appeal is that the evidence without conflict establishes the fact that plaintiff's contributory negligence was a proximate cause of the accident and injury. Appellants in their brief give us a statement which they say is the evidence given by the respondent and her witnesses, without regard to any contradictory evidence on behalf of appellants or their witnesses. It is contended by appellant that the evidence, as shown by the statement thus made of the evidence most favorable to respondent, is sufficient to establish contributory negligence as a matter of law. With this contention we are not able to agree. From the evidence presented we are satisfied that the court was justified in finding as a fact that plaintiff was not guilty of contributory negligence in the said transaction.

The judgment is affirmed.

Houser, J., and York, J., concurred.