Summers v. Dominguez

PULLEN, P. J.

Plaintiff, while walking in a general northerly direction along the main highway from Patterson toward Westley and on the easterly or right of the pavement, was struck and very severely injured by a truck owned and driven by defendant who was also traveling in a northerly direction along the same highway.

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The amended complaint alleges two canses of action. The first cause sets out that plaintiff was a minor; that while plaintiff was walking along the state highway between Patterson and Westley, defendant so negligently operated his truck as to strike plaintiff, causing injury. The second cause of action incorporated all of the allegations of the first cause of action and then alleged defendant, with knowledge that his truck had struck plaintiff, failed to render any assistance and, with the intent to prevent discovery that defendant had struck plaintiff, left plaintiff upon the highway; that the weather was cold and as a proximate result of, the wrongful and negligent acts of defendant plaintiff remained on the highway all night and suffered from exposure and shock and was further damaged thereby in an additional sum.

By various motions defendant attempted to strike out this second cause of action, which motions were denied.

The evidence discloses that plaintiff, a boy of 17, earned his own living by working on various ranches in and about Patterson and Newman. On the evening of December 25, 1936, plaintiff started to walk from Patterson toward Westley. He recalls leaving Patterson, walking upon the dirt shoulder off the concrete, but can recall nothing that happened thereafter, nor the fact that he was struck.

About 7 o’clock the next morning plaintiff was found by a passer-by lying in a ditch by the side of the road, about

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miles from Patterson. Investigation disclosed tire marks (subsequently matched to those of defendant’s truck) about three feet off the oiled shoulder of the roadway, and a mark where the plaintiff’s foot dragged along the shoulder for some 60 feet to where the body was found. These drag marks were parallel to the tire marks and were some two feet off the oiled shoulder and in the dirt at the side of the highway. Some 300 feet further north from where the body was found the tire marks turned across the highway into and across a ditch, tearing out a section of fence and into a bank, cutting into the earth. About a mile further on the car left the highway and was there abandoned.