Law v. Shoate

WARNS, J. pro tem.

*

Appellant brought this action to recover damages for the wrongful death of her 16-month-old son, Gary Augerlavoie, who was alleged to have died as the result of injuries suffered by said child when struck by respondent’s automobile when respondent was backing his car out of a parking space. The cause was tried by the court without a jury and judgment was entered in favor of respondent. This appeal followed.

The record discloses that on July 14, 1957, appellant and her two minor children were visiting her father who resided in the veterans housing project in Santa Rosa. During the course of this visit appellant left Gary with his grandfather while she went to the county hospital to call on a friend. While appellant was away the grandfather took care of the child in a large room in his apartment which was used as a combination kitchen and living room. While the grandfather was in the process of cooking dinner, Gary played on the floor with the other children. Although the outside door of the apartment was closed Gary managed in some way to get out of the room onto the grass play area at the side of the building. This grass play area adjoined a private parking area used by the families living in the housing project. The parking area was separated from the play area by two logs between which ran a dirt path. The parking area fronted upon Gunn Avenue, a private road within the housing project.

At the same time respondent and his family were visiting in another apartment occupied by his wife’s parents. He had parked his automobile in the parking area facing toward the play area, between two other vehicles, in an apparently reserved parking space. Respondent was requested to move his car. Respondent testified in substance that in response to this request he left the apartment of his wife’s parents and approached his car in an ordinary pace from the left rear side; that as he approached his car he had an unobstructed

[741]

view of the left side and the rear thereof but could not see the opposite side; that he knew children lived in the project; and that he did not see any children in the grass play area or within the immediate vicinity of Ms car or on any part of the parking area. Respondent further testified that he then entered the car, started it, looked back over his right shoulder, and was backing in a normal fashion when he heard one Alexander Hopkins, an eyewitness to the accident, holler, “Baby under your ear”; that he stopped immediately, got out of the car and discovered the decedent “under the middle of the car”; and that at the time he stopped the car it had moved three or four feet. An autopsy disclosed that the cause of death was internal hemorrhage resulting from a torn liver.