Van Der Most v. Workman

WHITE, P. J.

Defendant has appealed from a judgment against him for $3,500 entered after trial before the court, sitting without a jury, in an action for personal injuries sustained by the 'plaintiff when she was struck by an automobile operated by the defendant. He has also attempted to appeal from the order denying his motion for a new trial.

It is contended that the evidence was insufficient to establish negligence on the part of defendant; that the evidence discloses contributory negligence on the part of plaintiff ; that the findings of fact are unsupported by the evidence; that a statement of the trial judge at the close of the trial shows that he “violated defendant’s substantial rights”; and that it was error to deny defendant’s motion for a new trial.

On the date of the accident, January 22, 1944, plaintiff was 10 years of age. She and her brother Alvin were passengers on a bus proceeding south on Capitol Drive in San Pedro. The bus stopped at the intersection of Capitol Drive and Senate Drive, where plaintiff alighted. She remembered nothing concerning the accident until she awoke in the hospital.

Senate Drive, running in an easterly and westerly direction, intersects Capitol Drive from the west, forming a “T” intersection. The bus stopped at the northwest corner of the intersection, opposite the sidewalk on the north side of Senate Drive. Plaintiff was attempting to cross to the east side of Capitol Drive, having walked in front of the standing bus, when she was struck by defendant’s automobile, which was coming from the north and passing the bus on the left side. Plaintiff’s brother testified that his sister got off the bus ahead of him. When he was standing near the curb at the northwest corner he saw his sister approximately 15 feet out into the street, where she was struck. He estimated the speed of defendant’s automobile at 30 to 35 miles per hour, and said it was “going pretty fast.” He saw his sister, after the impact, “fly through the air” and come to rest at a point near the southwest corner of the intersection. He did not hear the defendant sound his horn. The defendant’s automobile came to a stop at a point approximately 100 feet south of the intersection.

The defendant, corroborated by his wife, who was riding with him, testified that he passed the bus at a speed of 15 miles

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