Ellis v. Trowen Frozen Products, Inc.

McCABE, P. J.

This is an action for personal injuries suffered by the 5-year-old plaintiff when she was struck by an automobile while crossing the street to make a purchase from defendant’s ice cream truck.

1

Upon the conclusion of plaintiff’s case, the trial court, sitting with a jury, granted a judgment of nonsuit in favor of defendant. Plaintiff appeals from this judgment.

The facts of the case will be stated according to the familiar rule that the evidence must be viewed in the light most favorable to plaintiff, disregarding conflicting evidence on behalf of the defendant and indulging in every reasonable inference in favor of plaintiff. We may affirm the judgment only if there is no substantial evidence which would support a verdict for plaintiff.

(Schwartz

v.

Helms Bakery Ltd.,

67 Cal.2d 232, 235 [60 Cal.Rptr. 510, 430 P.2d 68];

O’Keefe

v.

South End Rowing Club,

64 Cal.2d 729, 733 [51 Cal.Rptr. 534, 414 P.2d 830,16 A.L.R.3d 1].)

Plaintiff sustained injury on May 14, 1964, at approximately 6:55p.m. in the 900 block of West “I” Street. Defendant’s truck was parked in the middle of the block, next to the curb and almost directly across the street from plaintiff’s home. It was daylight, the streets were dry and visibility was clear.

The testimony of defendant’s driver may be summarized as follows: it was his job to sell ice cream products from defendant’s truck as it traveled through the residential section of the city; defendant offered a wide variety of ice cream products for sale; he was the driver of the truck as well as the salesman; he was supplied with a route sheet each day which specified the streets he was assigned to cover; the truck was to proceed down a street just once attracting customers from

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both sides of the street; the chief attracting mechanism was a loudspeaker system on the truck which continuously broadcast a simple tune while the truck was in motion; the tune could be heard approximately one block from the truck; when a potential customer attracted his attention, he would stop the truck along the right hand curb, turn off the engine and the music and alight from the truck to serve the customer; the average stop was from three to five minutes; the purposes of stopping the music was to inform other potential customers that the truck had parked in the area for business; the truck always stopped away from a corner; 90 percent of defendant’s customers were children ranging in age from 4 to 16; the best hours for making sales were from 4 to 7 p.m. when the children were home from school but before they went to bed; although he never received instructions from the defendant, he made it a practice not to serve young children in the street because of the danger of passing automobiles; and, his truck was equipped with headlights, turn signals and tail lights. It had no parking lights of any kind.