Sperling

Margaret L. Sperling and William F. Sperling sustained personal injuries in a single car accident which occurred on Los Coches Road, near Lakeside, California, on October 21, 1966. They brought suit against Edwin C. Hatch, doing business as Hatch Chevrolet, from whom the car had been purchased three months before, claiming the accident was caused by defective brakes. Trial was commenced before a jury; at the close of the plaintiffs’ case, the trial court granted defendant’s motion for a nonsuit on the ground the evidence established, as a matter of law, the affirmative defense of an assumption of the risk as to both plaintiffs. The Sperlings have appealed from the judgment entered on the nonsuit; they question the propriety of the nonsuit and maintain the issue of assumption of the risk should have been submitted to the jury.

At the outset, we note a trial court may grant a motion for non-suit: “when, and only when, disregarding conflicting evidence, and giving to plaintiff’s evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of…