Galbraith v. Thompson

NOURSE, P. J.

Defendant Thompson appeals from a judgment on a verdict of $7,300 in a wrongful death case. Respondent Floreine Galbraith brought the suit for damages for the death of her son Dennis Hermes of whom she had custody under a divorce decree. He was killed in a collision with appellant’s car when he ran into the street in pursuit of a ball. Over and above a general denial defendant pleaded contributory negligence both of the child and the plaintiff mother and unavoidable accident. Defendant’s motion for a new trial was denied by failure of the court to act on it.

Appellant primarily relies on insufficiency of the evidence, but also states: “the only issue (except for misconduct of counsel hereinafter cited) before this court is whether it was improper to submit the last clear chance doctrine to the jury. ’ ’ Appellant’s position seems to be that the only theory under which he could possibly be held liable was the last clear chance doctrine, that this was also the theory on which the case was tried, and that there was no evidence supporting the application of said doctrine so that the giving of an instruction on it was error; but respondent argues that no negligence of mother or child necessarily contributed to the proximate cause of the injury so that, although there was a possible evidentiary basis for application of the last clear chance theory, the verdict could also be upheld on the theory of simple negligence.

The accident happened on August 4, 1948, about 6:40 in the evening. The weather was fair and it was still light. At that time Dennis was less than 7 years old. He and his mother lived with her parents, Mr. and Mrs. Greenlee, at 3651 22d Street, just east of Sanchez Street. His mother had gone visiting and had left him in the care of his grandmother. After he had had dinner with her at 5:30 he left alone saying he was going to play in the next block. The block in which they lived had a very steep grade and therefore the children

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played in the next block which was flat. The apartment house in which they lived had no backyard. He was a bright little boy who for two years had been accustomed to go to school by himself. That evening he went to play with Beatrice Dozier, who lived in the next block and who then was not yet 11. She testified that they went to a garage in the middle of the block on the north side to play ball. Some little children on top of the garage would throw Beatrice’s tennis ball down. Beatrice and Dennis on the sidewalk in front would try to catch it and throw it back up. They had played so for half an hour when they missed a ball, which then bounced from the sidewalk into the street. They turned to look for it. After Dennis had hesitated, looking where the ball was, he started to run after it. Beatrice then saw a car, seven houses down from where they were. The houses had 25-foot frontage. She yelled for Dennis to come back. He was running out, not fast, deviating somewhat in the direction of Noe Street. She saw the car again at 3756 22d Street. She was then starting to run after Dennis and she barely missed grabbing his T shirt, when the car hit him and she jumped back. She saw the front part of the car hit him; probably the right front fender.' The witness Irene Kane was slowly driving east in the block in question when she saw a ball bounce into the street, a child on the sidewalk running at an angle, southwest, after it, and a car coming up the street at least three car lengths away from the ball. There were very heavy black skid marks. The skid of each wheel measured averaged 34 feet, 6 inches. Defendant stated to the investigating officer that he was going approximately 25 miles an hour when the boy ran into the side of his car and the impact occurred.