Washko v. Stewart

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[Civ. No. 11281. Second Appellate District, Division Two. April 14, 1937.]

MILDRED WASHKO, as Administratrix, etc., et al., Respondent, v. JOEL STEWART, Appellant.


Gibson, Dunn & Crutcher and Philip C. Sterry for Appellants.

Wendell P. Hubbard and Alford P. Olmstead for Respondents.


Wood, J.

This cause was commenced by the legal representatives of the estate of Albert B. Washko, deceased, to recover damages for the death of the decedent caused by the negligent driving of an automobile by defendant Stewart. The car was owned by defendant Binkert and had been delivered to defendant Howard Automobile Company of Los Angeles to be serviced. At the time of the accident Stewart was returning the car to Binkert. The owner of the car, Binkert, the driver, Stewart, and Howard Automobile Company were all made parties defendant. The cause was tried before the court sitting without a jury and judgment rendered against defendant Binkert in the sum of $5,000 and against defendant Stewart in the sum of $12,000. Judgment [20 Cal. App. 2d 346] was entered in favor of defendant Howard Automobile Company of Los Angeles. This appeal is presented by defendant Stewart. A separate appeal has been filed by plaintiffs from the judgment in favor of the Howard Company.

[1] The accident occurred in the evening of November 9, 1933, at the intersection of Virgil Avenue and Lockwood Street in the city of Los Angeles. The decedent, a pedestrian, was in the act of crossing the street at the intersection as defendant Stewart drove the automobile into the intersection. The trial court found that Stewart was guilty of negligence and that the decedent was free from negligence. It is contended that these findings are not supported by the evidence. The evidence is conflicting and it was the duty of the trial court to decide the issues of fact presented by the conflicting testimony. Having in mind the rule that the findings must be sustained by an appellate court if there is substantial evidence to support them, we have examined the record and are satisfied that there is sufficient evidence, considered in connection with such inferences as the trial court could reasonably draw therefrom, to sustain the findings made. Evidence tending to a contrary conclusion must be disregarded in passing upon the question whether the findings are supported by the evidence. We therefore refrain from further discussion of the evidence. (Thatch v. Livingston, 13 Cal. App. 2d 202 [56 PaCal.2d 549]; Koeberle v. Hotchkiss, 8 Cal. App. 2d 634 [48 PaCal.2d 104]; Leavens v. Pinkham & McKevitt, 164 Cal. 242 [128 P. 399].)

The judgment is affirmed as to appellant Stewart.

Crail, P. J., and McComb, J., concurred.