Waid v. Smith

BARNARD, P. J.

This action arose out of an accident in which the minor plaintiff, who was 22 months old, was struck by an automobile which was being backed by the defendant Mrs. Smith.

The accident occurred about 3 p. m. on January 3, 1946, in the intersection of 42d Street and East Canterbury Drive in San Diego. In a real sense, this is not an intersection but these two streets come together in the form of a reverse “L.” Canterbury runs east and west but ends at 42d Street, and 42d Street runs north and south but ends at Canterbury. On the north side of Canterbury and approximately on a line with the center of 42d Street, if that line were projected across the intersection and to the north, is a wall and hedge forming the east boundary of a home on the north side of Canterbury and opposite the west half of 42d Street. To the east of this wall and hedge is an open space about 20 feet wide and 30 feet long, which is opposite the easterly half of 42d Street. The defendants, who lived on the street to the east of 42d Street, had a garage at the rear of their home which opened upon the easterly side of this open space. Their car was 17 feet long and it had long been their practice to back the car into this open space until they reached the wall and hedge. Since the space was only 20 feet wide it was then necessary to go forward and backward two or three times until the car was in a position where it could be backed through the south end of this open space into this intersection. As they came into the intersection they would back to the left toward Canterbury enough to permit them to turn to the right and proceed south on 42d Street.

On this occasion Mrs. Smith backed out in this manner, as she had done daily without incident for 18 years. Just before entering the garage she had talked with a neighbor over this

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wall. She then, walked over to the garage, looked up the street, and then entered the garage and proceeded to back the car out. At that time no children were around the intersection, and there was no traffic there. After Mrs. Smith left to enter her garage, the neighbor observed the minor plaintiff standing with his wagon and a dog near the east curb of 42d Street and three-fourths of a block south of the intersection here in question. No one else saw the child at any time material here.