Holden v. Patten-Blinn Lumber Co.

ROTH, J.,

pro

tem.

Respondent, a minor, by his guardian

ad litem,

brought suit for damages sustained as the result of personal injuries suffered when struck by an automobile owned by appellant Lumber Company and operated by one of its employees. The accident occurred on July 25, 1922, when plaintiff was three and one-half years old. This suit was filed January 8, 1932, approximately ten years later.

Appellants concede the rule that an appellate court cannot disturb a judgment rendered on conflicting evidence and also that the credibility of the witnesses must be determined by the trial court or jury, but insist that because of “the lapse of time intervening between the accident and the trial, and the' interest of the witnesses testifying for plaintiff, a more than ordinary scrutiny should be given to such testimony and the statements of disinterested witnesses accorded their full reasonable value”. Feeling that the request and suggestion of appellants is a fair and reasonable one, we have religiously scrutinized the record and find that the only witness who can be said to be interested, in a legal sense, who testified for respondent on the facts of the accident, was his grandfather, an eye-witness. As to the physical condition of the child before and after the accident, his mother testified. This testimony, in so far as it described the child’s physical condition after the accident and his physical condition at the

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time of trial, was amply supported by the testimony of three doctors who cared for the child. While it may be said in a colloquial sense that the doctors were interested, they cannot be said to be interested witnesses in a legal sense and their testimony, with the exception of a description of and an opinion as to the amount of pain suffered or likely to be suffered, is of a professional, factual nature, corroborated by hospital records.

Disregarding the testimony of the child’s grandfather, the preponderance of the evidence shows that a three and a half year old child had stepped off the curb and was walking east approximately 60 to 80 feet south of the intersection of Sixteenth and New Hampshire Streets in the city of Los Angeles and had taken at least two or three steps into New Hampshire Street when a Ford touring car owned by appellant Lumber Company and operated by one of its. employees, appellant Haskins, proceeding in a southerly direction, was at a point north of the northerly curb line of Sixteenth Street and continued at a speed of 20 to 30 miles per hour across the intersection and to the point in the street where the child was walking, the- right fender or right portion of the bumper of the Ford touring car striking the child at an undetermined point between the west curb of New Hampshire and what would be the center line of the street. One eye-witness (called by the defense) testified: “I believe the man tried to avoid hitting the child because he swerved out that way.” The driver of appellant’s car testified: “The first time I saw the boy he was on the sidewalk. I don’t know whether he was moving or standing still. ... I don’t know how far I was from the boy when I first observed him. I paid no more attention to him.” One Segner, a witness for respondent, testified, according to a summary of his testimony made in appellants’ brief: “I don’t know exactly where the boy was in the street when he was struck. I know he was some place in the street. I seen him walk off the curb, and he had taken several steps off the curb. I saw him step down from the