Gavin v. Watt

[240]

BARNARD, P. J.

This is an action for damages for injuries suffered by the minor plaintiff when she was hit by an automobile, and for medical expenses incurred by her father. A jury returned a verdict in favor of the defendants and the plaintiffs have appealed from the judgment, with a purported appeal from an order denying their motion for a new trial.

The accident happened on March 4, 1954, near the intersection of Fourth Street and “F” Street in the village of Encinitas. Fourth Street runs north and south and “F” Street runs east and west. The traveled portions of both streets were covered with black top 30 feet wide, and there were 10-foot dirt shoulders on each side of Fourth Street and 5-foot dirt shoulders on each side of “F” Street. There was a school yard on Fourth Street 100 feet north of the north line of “F” Street. There was a row of bushy cypress trees along the south line of the grandmother’s property, bein'g the north line of “F” Street. “F” Street dipped slightly downhill as it led east from Fourth Street, and there were sloping banks some three feet high on both sides of “F” Street where sidewalks would ordinarily be.

The child, who was then 22 months old, was staying with her grandmother in a house at the northeast corner of this intersection. A few minutes before the accident the grandmother and the little girl went across to a point on the south edge of “F” Street opposite the rear of the house on the southeast corner of that intersection, where she talked with two retired teachers who lived in that house. While they were talking, the child went back to the north side of “F” Street, went up on the bank there, and a little later returned and was recrossing “F” Street toward her grandmother when the accident happened.

About this time the defendant Watt drove south on Fourth Street past the school yard, turned left at the intersection, and was proceeding east on “F” Street. She was driving at about 15 miles an hour and did not see the child. Her ear struck the child at a point about 63 feet east of the east line of Fourth Street and near the point where the grandmother and the other two women were standing. She stopped immediately, and the child was then lying underneath the car near one of the front wheels. The child suffered a broken leg, and at the time of the trial there were severe scars on her leg which the doctors expected to improve in appearance to a greater or less degree.