People v. Warner

PULLEN, P. J.

This is an appeal from an order denying the motion for a new trial and from the judgment of conviction for a violation of section 500 of the Vehicle Code.

The facts briefly are that defendant, on the day in question, was driving a truck along a narrow county road bordered upon both sides by cherry trees. The road was paved with oil macadam and varied in width from fifteen to seventeen feet. Some time in the morning of October 8, 1937, Mrs. Edna Choate and her husband, parked their Ford truck, to which there was attached a small trailer, on the side of this road near the vicinity of the bunkhouse on the Swetzer ranch, leaving their car in such a manner that the left front wheel of the truck was either on or immediately off the paved portion of the roadway. About the middle of the day defendant, proceeding easterly, driving a Dodge truck, passed the parked Ford truck. On his return trip about 4 o’clock in the afternoon, as he rounded a turn some distance westerly of the parked car he again saw the truck and trailer parked in the same position as when he passed it earlier in the day. Just prior to this time Mrs. Choate carried a small child across the highway and opening the Ford door next to the driver’s seat on the road side of the truck, placed the child on the seat and proceeded to change its clothing. As she thus stood at the side of the car leaning over the seat, Robert Choate, her grandson about four years of age, came to her from either across the highway or from the rear of the truck, and she, observing the oncoming car of defendant, drew the little boy close to her side as the car approached. As the truck driven by Warner approached the parked car of Choate it swung away from its proper side of the road and in a gradual curve drew to the side of the road upon which the Ford truck was parked. Just as the truck passed, Mrs. Choate felt an impact and then saw her grandson lying fatally injured on the ground about even with the rear wheel of the truck.

[192]

The testimony of Warner was that as he rounded the turn he saw the truck, but until after the accident saw neither Mrs. Choate nor either of the children. However, as he came down the road a small child, so he testified, started out from behind a pile of lug boxes across the road from the truck where several other children were at play, but seeing the truck approaching, turned and ran back. The defendant slackened his speed and swung over to his left in order to safely pass the boxes and avoid striking any of the children who might run out from behind the boxes. Just as he passed the Choate truck he felt a slight impact and brought his ear to a stop. As he got out to see what had happened, he saw that the rear view mirror attached to the cab of his truck had been broken off, and hearing a woman scream he immediately ran back to the scene of the accident.