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District Court of Appeal, Second District, Division 1, California.


Civ. 8513.

Decided: February 27, 1934

Bart F. Wade, of Los Angeles, for appellants. Redwine & Redwine and Donald M. Redwine, all of Hollywood, for respondent.

The action was brought by the plaintiff to recover damages on account of injuries which resulted from a collision between an automobile driven by the plaintiff and a motorbus operated by defendant Boles, driver for the defendant corporation. At the time of the accident the two vehicles were traveling in the same direction, and the motorbus hit the right–hand side of the back part of the plaintiff's car.

The stated grounds of appeal, as shown by appellants' opening brief, are that the evidence is insufficient to support the verdict, and, particularly, that the plaintiff was guilty of contributory negligence as a matter of law. The cause came before us on motion by respondent to dismiss the appeal or affirm the judgment upon the grounds that the appeal was taken for delay only, and that the questions upon which the decision rests are so unsubstantial as to need no further argument.

At the hearing of the motion, the motion was granted and the judgment affirmed. This memorandum of opinion is filed as a more formal statement of the grounds of decision.

The evidence clearly shows that the accident and injury resulted from negligence of the defendant in the operation of its motorbus. On the question of contributory negligence, the contention of appellants is that the conduct of plaintiff in the moments immediately preceding the collision amounted to contributory negligence in that it constituted a violation of section 130(a) of the California Vehicle Act (St. 1923, p. 558, § 130(a), as amended by St. 1925, pp. 412, 413), wherein it is provided that “the driver of any vehicles upon a public highway before * * * turning * * * such vehicle shall first see that such movement can be made in safety. * * *” Conceding, without deciding, that there was some evidence from which the jury might have found that the plaintiff did not use due care under the circumstances existing at the time in question, we think that the evidence was at least equally open to the inference and proper finding that the plaintiff was not negligent. It seems unnecessary to set forth a new digest of the record in order to justify this conclusion.