Freitas

This is a motion to dismiss an appeal or affirm the judgment. (Rules for Supreme Court and District Courts of Appeal, Rule V. subd. 3.) The plaintiffs contend that the appeal was taken for delay only and that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.

For the injuries sustained in an automobile collision the plaintiffs commenced an action against the defendants to recover damages. The defendants filed an answer and a cross-complaint. The plaintiffs answered the cross-complaint and on the issues so framed the action was tried before the trial court sitting without a jury. The trial court made findings of fact in favor of the plaintiffs and a judgment in their favor was entered. The defendants made a motion for a new trial. The motion was denied. Thereafter they filed an appeal from the judgment and from the order denying them a new trial. On December 20, 1932, the defendants filed their brief in which they contended that the plaintiffs were guilty of contributory negligence as a matter of law.

On Sunday evening, the thirteenth day of September, 1931, at about 9 P. M. the plaintiffs were driving from San Francisco…