Brousseau v. Carnation Co.

California Court of Appeal Dec 6, 1955 No. Civ. 8579Published

Before: Peek

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court erred in granting a nonsuit because the evidence presented a question of fact for the jury regarding whether the driver exercised the requisite degree of care for the safety of children in a parade.

Issues

Whether the evidence was sufficient to support a jury finding of negligence against the driver for failing to exercise care commensurate with the danger posed to children.
Whether the possibility of a third party pushing the child into the street constituted a foreseeable hazard for which the driver could be held liable.

Disposition. reversed

Quotations verified verbatim against the opinion

“The presence of children is in itself a warning requiring the exercise of care for their safety.”

“Hence under the circumstances the question of Ohman’s negligence was one of fact for the jury.”

PEEK, J.

This is an appeal by plaintiffs from a judgment of dismissal entered in favor of defendants upon their motion for a nonsuit.

Summarizing the evidence in light of the well-established rule that, “. . . a nonsuit may be granted only when, disregarding conflicting evidence, giving to plaintiff’s evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence favorable to plaintiff’s case, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff”

(Dunn

Pacific Gas & Elec. Co.,

43 Cal.2d 265, 268 [272 P.2d 745] ;

Hilyar

Union Ice Co.,

45 Cal.2d 30, 35 [286 P.2d 21]), it appears that defendant Ohman was employed by the defendant Carnation Company as a driver-salesman; that pursuant to instructions from the company’s Sacramento branch manager, he drove a small panel truck to which was attached a flat two-wheel trailer in a Fourth of July parade; that on the trailer was an ice cream cabinet containing small paper cups of ice cream which were thrown out to people along the route of the parade by two girls employed by defendant company; that defendant Ohman saw numerous children along the parade route; that there were some ice cream cups which fell into the street; that he couldn’t watch all of the time; that he observed people picking up the cups from where they had landed; that when the cups were thrown out Ohman observed that more than a normal amount of excitement was created among the children; that he could see to the rear through two 8-by-8-ineh windows in the rear of the truck; that at the time of the accident the truck and trailer were slightly to the right of the center of the street and moving at a speed of from 2 to 4 miles per hour. At the point near where the accident occurred Ohman had been compelled to stop because of a halt in the parade. There were automobiles parked along the street and people standing in the street and

[572]

Brousseau v. Carnation Co.

AI Brief

PEEK, J.

More from California Court of Appeal

Related research

AI Brief