Edelson v. Higgins

43 Cal.App.2d 759 (1941) FREDELE EDELSON, a Minor, etc., Appellant,

v.

WILLIAM M. HIGGINS, Respondent.

Civ. No. 12907. California Court of Appeals. Second Appellate District, Division Two.

March 28, 1941. Albert A. Horn for Appellant.

Nourse & Jones for Respondent.

MOORE, P. J.

Plaintiff, aged 5 1/2 years, by her guardian ad litem, takes this appeal from a judgment following an unfavorably directed verdict in an action for damages for personal injuries.

On Saturday, April 8, 1939, at about 10:30 A. M. defendant drove his car from his garage upon a 97-inch driveway which extended along the side of the flat building in which he resided. Plaintiff's home stands south of the driveway. Between defendant's driveway and plaintiff's home there is a concrete strip used as a pathway for entrance to the rear of plaintiff's home. It is adjacent to the driveway although not a part of defendant's lot. While defendant was moving on the driveway, about 45 feet from his garage, in low gear, [761] at from about 3 to 5 miles per hour, plaintiff ran out from a 3-foot space between a cypress tree and the front of her home and into the front door of the defendant's car at the driver's seat. She suffered injuries from the impact.

Defendant did not sound his horn. He had lived in the same flat for 7 years and knew that the children played on the front lawns; but he knew also that he was traveling on his own driveway where no one was in view prior to plaintiff's collision with his car. He was traveling so slowly that he stopped within a foot or two.

Plaintiff's mother was not at home at the time of the accident. Plaintiff was disqualified as a witness by reason of her tender years and lack of understanding of the nature of an oath. Her sister, Rita, 12 1/2 years of age, testified that she was in the front room of their flat when the accident occurred; that she heard her sister scream, ran out and saw her bleeding as she lay on the ground alongside the car. She assisted her into the home and rendered first aid. She testified that the car was partly on the walk and partly on the driveway. Mrs. Florence Sonnenberg, who resided near by, testified that when she arrived at the driveway the car "was standing pretty far into the walk--I wanted to go in through the back. ... I couldn't because there was a tree also in the way and I couldn't get in because the car was standing ... mostly on the walk". Mrs. Fannie Gallenko, who lived in the Higgins flat building, testified that on hearing screams, she looked and saw Mr. Higgins standing near his car and the child bleeding. "He requested me to call a physician." She also testified that the car was very close to plaintiff's house--near the tree.