Gorzeman v. Artz

ROTH, J.,

pro

tem.

Joseph Gorzeman, an infant three years old, while playing, on May

22,

1933, in the driveway which circled his home, was backed into and hit, or run over, by the right rear wheel of a bakery wagon operated by defendant Poling, who was at the time an employee of defendant Artz. The bakery wagon in question was an automobile which was made up of a box mounted upon an automobile chassis. The box was of such size that the operator of the bakery wagon, when sitting in the driver’s position, could not see to the immediate or direct rear thereof. The evidence shows without contradiction that Poling had been calling at the infant’s home some two months prior to the accident, on an average of six times a week; that there was another child in addition to Joseph; and that frequently Poling would give cookies to the children. When donating such cookies or selling other supplies, Poling had to go to the rear of the wagon and open the doors of the box-like structure. There is no evidence indicating how the accident happened except the admissions of Poling, made first to the infant’s mother immediately after the accident (who, in response to the screaming of the child, rushed outside to pick him up), and within five minutes thereafter to the infant’s father, upon both of which occasions Poling said, according to their testimony, “I backed over the boy,” and made other admissions from which it is not difficult to infer negligence on his part. Poling did not testify in person or by deposition. As a consequence of the accident this action was instituted by the infant through his father, John Gorzeman, as guardian

ad litem,

and by the father as a plaintiff in his own right. Both plaintiffs recovered against both defendants. Defendant Artz alone appeals.

Artz contends that there is no evidence of negligence upon which the judgment against either defendant could be sustained, and further, that the judgment cannot be sustained against him because if there is evidence of negligence it con

[662]

sists wholly of the admissions of Poling, which are only admissible as against Poling.