Frederiksen v. Costner

VALLÉE, J.

Appeal by plaintiff from a judgment of nonsuit in an action for damages for the alleged wrongful death of a child named Cheryl, 3 years and 2 months old at the time of her death. Plaintiff is the father of Cheryl. The motion for judgment of nonsuit was granted on the ground there was no evidence from which an inference of negligence reasonably could be drawn.

The evidence is stated in accord with the rules applicable to a motion for a judgment of nonsuit which need not be repeated.

Defendants, as partners, conducted a wholesale egg business in a structure which consisted of a building (the egg house) and a dock. A small office adjoined the egg house. On March 28, 1948, defendant Albert Costner parked a GMC ton-and-a-half truck owned by himself and Ford Costner at the dock. The truck was backed up to the dock, its front facing south. Plaintiff parked his car to the east of the truck and next to it, its front headed to the dock. The dock was elevated, with steps to the west of the parked truck leading from the street to the top of the dock.

Plaintiff was at the property to buy four cases of eggs. As he left his car, he carried Cheryl, who was 38 inches tall in her bare feet, toward the office. Cheryl wore rain boots with about an inch heel. Plaintiff and Cheryl went up the steps to the dock. Albert Costner was on the dock. He talked to Cheryl. Plaintiff, Ford Costner and Cheryl went into the egg house for eggs. When they returned outside Cheryl played on the dock. Albert Costner was on the platform talking to Cheryl, “keeping her entertained” while

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she played. Albert loaded eggs onto the truck and then proceeded to its cab. "When he got into the cab there was a note hanging from the ignition key, which he read. He pulled the note off, crumpled it, dropped it, turned on the motor and started forward. As he did so he heard screaming and stopped. The truck traveled between 25 and 30 feet from the time it started until it stopped. "When it stopped, Cheryl was lying to the rear of the left dual wheels on the driver’s side.

Plaintiff was in his car arranging the third ease of eggs when lie heard the truck door slam. He immediately backed out between the truck and his car, observed that Cheryl was not in sight and yelled in a loud voice, “Hey, I got a little girl some place. ’ ’ He swung to the ground to see if Cheryl was on the other side of the truck. Before he could see under the truck, it started forward and as it did he saw Cheryl running in front of it. She was 2 to 4 feet in front of the truck to the left of the front hood. Her left arm was caught by the front bumper; the front wheel and both rear dual wheels ran over her.