Wilcox v. Epstein

BISHOP, J. pro tem.

The trial court found that the defendant, who was driving an automobile that struck the three and a half year old plaintiff, William Wilcox, was not guilty of any negligence, and as a consequence of this finding alone, the judgment denying the plaintiffs any relief, because of the accident, is supported by the findings. Plaintiffs’ appeal from the judgment is grounded upon the contention that the evidence does not support the finding referred to. We have concluded that the evidence cannot be said to be insufficient.

..The paths upon whose intersection the accident happened, were those of the little plaintiff, who was proceeding ahead of his mother on a public sidewalk, and of the defendant, who was driving out from a parking lot, back of a building. The defendant did not make a stop as she reached the sidewalk line. She never saw the youngster until, after his mother’s cry and her instant stop, she got out of her car and found him sitting about two feet in front of it. Supplementing these negative facts we have these bits of testimony. The defendant, taking her place at the blackboard at the plaintiffs’ request, testified, in part: “I was coming from the doctor’s office back here, going toward the driveway. . . . My car stopped . . . after I had passed the Westmore line and the doctor’s office line in the actual sidewalk partition. Q. You mean after you passed this point here on the diagram? A. That is right.” One of plaintiffs’ witnesses, also under examination at the blackboard, stated: “This is the House of Westmore and this is the doctor’s office; this is the driveway in between; the ear came out through here, and just as it entered here I saw

[583]

the car hit the little boy, and then his feet went one way and his head was under the wheel, and then the car stopped. Q. Did you know how fast the car was driven? A. Well, no. It was barely rolling at the time I saw it. Just like that keeled the little boy over and stopped. ” By stipulation of the parties, the trial judge was authorized to, and the findings recite that he did, view the premises where the accident occurred.

On the record thus presented to us we cannot say that the evidence fails to support the finding of the trial court that the defendant was not negligent. We must assume that the trial court gathered, by his view of the premises, whatever evidence a view could add to contradict plaintiffs ’ claim that defendant’s conduct was negligent.