Majority
This action was brought by plaintiffs to recover damages for personal injuries suffered by them resulting from having been struck by an automobile driven by defendant. In his answer to the complaint defendant pleaded affirmatively that the accident was prosimately caused by the negligence of plaintiffs. From a judgment in their favor defendant appeals.
The only point necessary to be considered is the failure of the court to make a finding on said special defense.[1] * There is evidence in the record which, if believed by the trial judge, would support a finding of contributory negligence on the part of plaintiffs. The plea of that defense in a personal injury action, with evidence tending to support it, presents an issue upon which the court is required to make a finding, and its failure so to do is reversible error. (Linde v. Emmick, 16 Cal.App.2d 676 , 682 [ 61 P.2d 338 ] ; Hall v. Kaufman, 30 Cal.App.2d 283 , 285 [ 86 P.2d 151 ] ; Tucker v. United Railroads, 171 Cal.702, 704 [ 154 P. 835 ] ; Maxwell v. Western
* Appellant has tendered this as one of the grounds for reversal of the judgment but has not provided us with any authorities relating to the question. Respondent has presented neither brief nor oral argument.
The court having failed to find upon the issue of contributory negligence, the judgment must be and it is reversed.
Moore, P. J., and McComb, J., concurred.
Cases cited
- Linde v. Emmick 16 Cal.App.2d 676 at 682 p. 316
- Hall v. Kaufman 30 Cal.App.2d 283 at 285 p. 316
- Maxwell v. Western Auto Stage Co. 46 Cal.App. 548 at 550 p. 317
- Huntington v. Vavra 36 Cal.App. 352 at 354 p. 317
- Blaylock v. Jensen 44 Cal.App.2d 850 at 852 p. 317
- Woodworth v. Morgan 4 Cal.App.2d 488 at 490 p. 317