Geren v. Lowthian

WARNE, J. pro tem.

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Appellant brought an action for recovery of medical expenses, plus compensation for anticipated loss of earnings, of his 4-year-old daughter as a result of injuries suffered by her when she was struck by respondents’ automobile. The cause was tried by the court without a jury, and judgment was entered in favor of the respondents. The appeal is from the judgment.

The evidence discloses that at about 4 o’clock in the afternoon of August 21, 1952, Mrs. Lowthian was driving west on Armstrong Street in, the town of Lakeport at a speed of less than 25 miles an hour. Judy Geren, appellant’s daughter, and some other young children were gathered about a lemonade stand which they had built. The stand was located on the north side of Armstrong Street a short distance from the intersection with High Street. Mrs. Lowthian noticed the children as she approached the intersection of High and Armstrong Streets. As she reached the west side of the intersection, Judy suddenly ran out into the path of Mrs. Lowthian’s automobile. She was struck by the car and suffered severe injuries that necessitated hospitalization for several weeks. When Mrs. Lowthian saw Judy running to

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ward the car, she immediately applied her brakes and swerved to the left but was unable to avoid striking the child. Both of Judy’s parents were employed, and she and her 5-year-old brother were left in the care of a Mrs. Darlene Bay, the mother of one child who expected a second child at the time. Mrs. Bay lived in an apartment on the second floor of Judy’s home. Just prior to the accident, Mrs. Bay had permitted Judy and her brother to cross to the lemonade stand. The children had returned from that trip and had not received permission to cross the street again. At the time of the accident, the children were not being observed by Mrs. Bay. There was evidence that the children frequently crossed the streets unescorted. Although the Geren yard was fenced, the gates were frequently left open so that the children were able to go in and out at will. The trial judge found that Mrs. Lowthian was not negligent; that the Gerens were careless and negligent in the management and control of their children; and that such negligence was a proximate cause of the accident.

Appellant contends that the negligence of Mrs. Lowthian was established as a matter of law. He alleges that Mrs. Lowthian was negligent, because she did not slow down when she noticed the children, sound her horn, or take any precautions to avoid injury to the children. There is no question that the presence of children is in itself a warning requiring the exercise of care for their safety.