Gates v. McKinnon

CARTER, J.

Plaintiff, a minor of seven years of age, and his father, also a plaintiff, recovered judgment for damages against defendant arising out of personal injuries suffered by the minor when struck by an automobile being driven by defendant. The action was tried before the court without a jury. The court found that the defendant was negligent and that such negligence was the proximate cause of the injuries suffered by the minor.

The sole issue presented on this appeal from that judgment, according to defendant’s contention, is whether or not the evidence is sufficient to support that finding.

In considering that question it must be kept in mind that if there is any substantial evidence supporting the judgment it must be affirmed, that all reasonable inferences supporting the judgment must be given effect, and that with conflicts in the evidence, this court is not concerned. Viewing the evidence in the light of that rule, the facts are as follows:

The accident occurred July 23, 1939, in the daytime, the weather being clear, on a street known as Appian Way in Santa Monica, California. Appian Way is a surfaced street running north and south, being thirty feet in width from curb to curb. The sidewalk adjoining the east curb of the street is five feet in width. There is no park area between the sidewalk and the street. Buildings are located along the east side of the sidewalk, and the bottom step of a stairway leading down from the roof of one of those buildings to the sidewalk is two feet eight inches from the east edge of the sidewalk. The stairway is ten feet wide. South of the stairway there is a concrete wall six feet high extending along the east edge of the sidewalk. The stairway accommodates persons living in apartments on the east side of Appian Way. It is also used to reach a passage way extending to the street lying east of Appian Way, and it is commonly used by persons traveling east or west at this point. The ocean lies west of Appian Way and is visible to one looking west when proceeding north along Appian Way. Just prior to the accident some children were playing with a ball on the roof near where the stairway descended. In order to retrieve the ball which

[181]

had gone out on the street, plaintiff minor, at the request of one of the boys playing with the ball, ran down the stairway, crossed the sidewalk in a stooping or crawling position, apparently stumbling at the bottom step, and proceeded to about 3 feet east of the center of the street directly west of the stairway where he was struck by the left front wheel and left end of the bumper on defendant’s car. Just prior to the accident defendant was driving his car, a 1935 Packard Sedan, equipped with four wheel brakes, in a northerly direction on Appian Way and at the time his ear struck plaintiff it was to the right of the center of the street. Five people were riding with him, two in the front seat besides the defendant and three in the rear. An automobile was proceeding in the same direction as defendant, about sixty feet ahead of him. There were no cars parked on either side of the street in the vicinity of the scene of the accident. A car was proceeding south on the street and was about even with defendant’s ear when the minor was struck. Another car was also proceeding south immediately in the rear of the last-mentioned car. There is evidence that immediately prior to the accident, defendant was looking west toward the ocean. Defendant testified that he was looking straight ahead. The evidence adduced by defendant was to the effect that he did not see the minor before the collision; and that he first knew of his presence when he felt the car strike something; that he was traveling 15 miles per hour; and that his car was stopped one to two car lengths beyond the point of impact; that defendant’s ear was five to ten feet south of the stairway when plaintiff minor left the west edge of the sidewalk, and that the minor darted from the sidewalk in a falling and stooping position directly in front of defendant’s car, and was struck a split second after leaving the sidewalk. Defendant’s evidence consisted in part of testimony by eye witnesses to the impact. Plaintiff produced no eye witnesses to the actual impact. The trial court before rendering its judgment viewed the site of the accident, and undoubtedly took such view, and the observations there made, into consideration as evidence.