Chavez

In this action brought by his widow and children for the death of David A. Chavez, the appeal is from a judgment of nonsuit. This being so, we must apply well known rules in considering the record and the briefs of the parties. Therefore, all evidence which favors the plaintiffs, including beneficial presumptions and inferences, must be taken as true. The lower court has no right to grant a nonsuit if there is any substantial evidence which, if believed by the triers of fact, would make out a case for plaintiffs. (McCall v. Otis Elevator Co., 219 Cal.App.2d 22, 24-25 [ 33 Cal.Rptr. 44 ].) An appellate court is forbidden in a case of this kind to weigh the evidence or to decide which of conflicting testimony is correct. We do not have a right to decide who should prevail on the facts of the case, but only whether the jury would be entitled to find from the evidence that the plaintiffs could recover, even though there is opposing evidence which, in the view of an appellate judge, might preponderate against the plaintiffs. In our system of jurisprudence the right of a party to have a jury decide the facts is so important that all legitimate considerations favor that function.

In…