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District Court of Appeal, Fourth District, California.


Civ. 3010.

Decided: July 07, 1942

Thos. J. Straub, W. H. Spaulding, and John J. Briare, all of San Francisco, for appellant. T. H. Werdel, of Bakersfield, for respondent.

Defendant has petitioned for a rehearing and has urged rather pointedly that the statement of facts set forth in the opinion filed in this case is not fair to it.

The testimony quoted in the opinion appears in the record exactly as quoted. It is true that in other parts of the testimony of the same witnesses the force of the quoted evidence was weakened.

Another witness testified concerning the soapsuds test as follows:

“Q. All you saw was soapsuds on the pipe and little bubbles on the soap? A. Coming up from the pipe.

“Q. What do you mean by that? A. Where they put it on the pipe there was bubbles.

“Q. Wasn't there bubbles all along the pipe where the soap was applied? A. No sir.

“Q. Did you ever use that method? A. Yes.

“Q. Whenever you apply soapsuds aren't there always bubbles? A. Yes, but they don't come up from the pipe.” This witness also testified that he did not know if the bubbles increased in size.

Contradictions and inconsistencies in the testimony of a witness go to the weight of his evidence and to his credibility and are matters settled before the case reaches the appellate court. Here the jury evidently accepted parts of the evidence offered in behalf of plaintiff as true. This was its privilege. Angelo v. Esau, 34 Cal.App.2d 130, 93 P.2d 205. The trial judge evidently agreed with the jury except as to the amount of the damages, because he denied the motion for new trial.

If we are correct in our understanding of the rules to the effect that the credibility of witnesses, the weight to be given to their evidence and conflicts in the evidence are addressed to and settled by the jury and the trial judge, and not on appeal, and that on appeal all reasonable inferences from the evidence must be drawn in favor of the prevailing party, we cannot agree with counsel for defendant that there is no substantial evidence supporting the verdict and judgment. This is true even though we are of the opinion that we would have granted the motion for new trial had we been sitting in the trial court.

Defendant urges that we have overemphasized the testimony of the expert called by plaintiff on the cause of the explosion. It is true that he did not use the expression that “in all probability” the explosion was caused by gas vapors being ignited by the electric spark from the switch. We have reviewed his evidence and it is seemingly apparent from all of it that he believed the explosion to have been caused by gas. He stated several times that, in his opinion, there was the greater probability that the explosion had been caused by the escaping gas rather than by escaping gasoline fumes although he could not eliminate the possibility of the latter having caused it. When all of his testimony is considered as a whole, the statement that it was the opinion of this witness that in all probability the explosion was caused by gas does not seem to be an unfair inference to be drawn.

The questions of the sufficiency of the evidence, the credibility of the witnesses, the weight to be given their testimony and conflicts in the evidence are addressed to the jury in the first instance and next to the trial judge on the motion for new trial. Clippinger v. Reiss, 17 Cal.App.2d 604, 62 P.2d 418; Sassano v. Roullard, 27 Cal.App.2d 372, 81 P.2d 213. This is one of the cases where our study of the record has caused us to feel that the motion for new trial should have been granted. The jury having returned a verdict for plaintiff and the trial judge having denied the motion for new trial we cannot reverse the judgment even though the study of the record leads us to believe that the preponderance of the evidence is with the defendant.

The petition for rehearing is denied.