It is well settled and firmly established in our law that where findings or a judgment are assailed on the ground that the record is barren of any substantial evidence to support the same ". . . the power of the appellate court in passing on this question begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the verdict rendered by the jury; and on appeal from a judgment for defendant in an action for damages for negligence, all conflicts in the evidence must be resolved in favor of the defendant, and all legitimate and reasonable inferences indulged in to uphold the judgment, if possible; and when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury. ( Crawford v. Southern Pac. Co., 3 Cal.2d 427 [ 45 P.2d 183].)" ( Arundel v. Turk, 16 Cal.App.2d 293, 295 [ 60 P.2d 486].) Pertinent to the situation with which we are here concerned is the language of this court in Poe v. Lawrence, 60 Cal.App.2d 125, 131 [ 140 P.2d 136], wherein we said:
But there was also positive testimony to the contrary, as hereinbefore set forth, much of which was corroborated by other testimony which need not here be set forth. In view of the foregoing, and where, as here, appellant challenges the judgment on the ground that the record is barren of any substantial evidence to support the same, it is well settled and firmly established in our law, as was said in Arundel v. Turk, 16 Cal.App.2d 293, 295 [ 60 P.2d 486], that "When a judgment is attacked as being unsupported by the evidence, the power of the appellate court in passing on this question begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the verdict rendered by the jury; and on appeal from a judgment for defendant in an action for damages for negligence, all conflicts in the evidence must be resolved in favor of the defendant, and all legitimate and reasonable inferences indulged in to uphold the judgment, if possible; and when two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the jury. ( Crawford v. Southern Pac. Co., 3 Cal.2d 427 [ 45 P.2d 183].)"
[2] An instruction should be given only when it is applicable to the issues raised by the pleadings or it is pertinent to some issue or theory developed by the evidence. ( Sills v. LosAngeles Transit Lines, 40 Cal.2d 630, 633 [ 255 P.2d 795]; Garcia v. Conrad, 40 Cal.App.2d 167, 170 [ 104 P.2d 527]; Arundel v. Turk, 16 Cal.App.2d 293, 297 [ 60 P.2d 486].) The decisive factor here is the time when Dunham knew, or should have known, that an accident would occur unless preventive steps were taken.
( Burchett v. Anaconda Copper Min. Co., 48 Idaho 524, 283 P. 515; 71 C. J. 696.) The uncontradicted testimony of an unimpeached and credible witness, though a party, cannot be disregarded by the Industrial Accident Board. ( Manley v. Harvey Lumber Co., 175 Minn. 489, 221 N.W. 913; Arundel v. Turk, 16 Cal.App. (2d) 293, 60 P.2d 486; Baggett v. Pace, 51 Idaho 694, 10 P.2d 301; Jeffrey v. Trouse, 100 Mont. 538, 50 P.2d 872.) HOLDEN, J.
And if it is likely to mislead the jury, the error is prejudicial. ( Arundel v. Turk (1936) 16 Cal.App.2d 293, 297 [ 60 P.2d 486].) [2b] The contention is that paragraphs 1, 3 and 4 were applicable to the case, but that the second paragraph should have been omitted inasmuch as there was no evidence from either of the parties to the effect that there were alternative recognized methods of diagnosis or treatment in plaintiff's post-operative care, as contrasted with the extensive testimony regarding alternative methods of diagnosis and treatment during the surgery involved in the case.
[3] It is elementary that instructions must be supported by some evidence. ( Arundel v. Turk, 16 Cal.App.2d 293, 297 [ 60 P.2d 486], and Leo v. Dunham, 41 Cal.2d 712, 714 [ 264 P.2d 1].) [4] There is nothing in the record from which it could even be inferred that appellant removed himself from the crosswalk to avoid being struck. Although the evidence is conflicting regarding whether appellant was (a) crossing within the crosswalk (b) 2 feet west or (c) several feet west, there is no conflict as to his manner of crossing.
Nor can it be denied under the above facts, that the nuisance issue was developed by the evidence and therefore a proper subject for instructions. ( Arundel v. Turk, 16 Cal.App.2d 293 [ 60 P.2d 486].) [2a] Defendant next argues that it was error for the trial court to fail to qualify its nuisance instructions that no nuisance may be found in the absence of finding that the defendant was guilty of negligence, intentional wrongdoing, recklessness, or was engaged in an ultrahazardous activity, and that at the very least it cannot be determined upon which theory the jury acted.
Based upon substantial evidence, the court properly found against plaintiff on these issues and such findings will not be disturbed on appeal. ( Arundel v. Turk, 16 Cal.App.2d 293, 295 [ 60 P.2d 486].) [3a] Plaintiff's third claim is that since defendants made default in the payments due under the contract, time being of the essence, their rights thereunder were automatically terminated, citing 25 California Jurisprudence, page 607, section 113; and Ross v. Gentry, 94 Cal.App. 742 [ 271 P. 1098].
Assuming that opposing inferences might be drawn by reasonable minds from the evidence presented in the cause now before us, the jury having adopted the one and rejected the other, its decision is binding upon the appellate court, the case being in substance the same as where the jury decides upon the weight of contradictory evidence. ( Arundel v. Turk, 16 Cal.App.2d 293, 295 [ 60 P.2d 486], and cases cited.) [1b] Plaintiff's cause of action was based upon the negligence of an employee of defendant railway company in placing the icing board in a dangerous position.
And not only must all conflicts in the evidence be resolved in favor of the prevailing party but all legitimate and reasonable inferences must be indulged in to sustain the judgment. Furthermore, where the facts admit of two or more reasonable deductions, the reviewing court is without power to substitute its deductions for those of the trier of fact ( Harms v. Reed, 73 Cal.App.2d 853, 860 [ 167 P.2d 747]; Arundel v. Turk, 16 Cal.App.2d 293, 295 [ 60 P.2d 486]). [7] The evidence in the case at bar has hereinbefore been narrated and it is unnecessary to here repeat it.