Lopez v. Price

WOOD, P. J.

In a nonjury trial of this action for damages for personal injuries, judgment was for defendants. Plaintiff appeals from the judgment and the order denying his motion for a new trial.

Appellant asserts that evidence was insufficient to support the findings and judgment.

Plaintiff, a S-year-oId boy, resided with his parents on the north side of Lucille Street (an east-west street) in Arcadia. On September 21, 1958, about 2 p. m., he was playing with a ball in the front yard of his home. The ball rolled into the street, going in a diagonal direction toward the southwest. He

[813]

followed the ball into the street. An automobile, which defendant Mrs. Price was driving west on the north side of the street, struck the boy and injured him.

Mr. Pagone, called as a witness by plaintiff, testified: He resided next door to plaintiff’s home. Before the accident he was in his front yard and he saw the boy (plaintiff) playing with a ball. The ball rolled into the street, going diagonally to the southwest. Then the boy “sort of paced at a slow pace” after the ball. He (witness) saw an automobile, which was going west, hit the boy when he was 6 feet into the street. Just before the impact the boy was still going for the ball. The automobile proceeded about 100 feet after the impact, and he (witness) yelled and then the driver stopped the automobile. When he went to the automobile, Mrs. Price (the driver) asked what she had done, and said that she thought she had hit a paper box. When he first saw the oncoming automobile it was about 6 feet away from the boy and was traveling at the rate of approximately 35 miles an hour. There was a parked automobile at the curb on the north side of the street, and about 60 feet east of the place where the accident occurred.

A police report, which was received in evidence upon stipulation, stated that Mr. Pagone had said that Mrs. Price was driving at the rate of 30 to 35 miles an hour.

Mrs. Price (defendant) testified: She was driving west on Lucille Street at a rate which was close to 20 miles an hour. There was a parked automobile on the north side of the street. While she was driving on that street she heard someone scream. Then she stopped, and she saw the boy lying in the street. Before she heard the scream, she felt something that was like a right tire running over an imperfection in the road. While she was driving she was looking ahead. When she was out of her automobile and was going back to the boy, Mr. Pagone said to her: “Just relax. You couldn’t possibly have seen him.” She said to Mr. Pagone, “Why did he come out there!” He replied, “Well, you couldn’t have seen him, so just relax.”