Zulim v. Van Ness

JENNINGS, J.

The plaintiff, a minor, through his guardian

ad litem,

instituted this action to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. After the plaintiff had concluded the presentation of his case and had rested, defendants moved the court for a nonsuit. This motion was denied. The defendants then produced the testimony of one witness and rested their ease. Thereupon, the defendants moved the court to direct the jury that they should return a verdict in favor of the defendants. This motion was also denied by the court. The jury was then instructed by the court and the cause was submitted to that body for its determination. A verdict was duly returned in favor of both defendants and a judgment in their favor was thereupon rendered in accordance with the verdict. The plaintiff thereafter moved the trial court for a new trial which was denied. Plaintiff has prosecuted this appeal from the judgment.

Appellant does not complain that the trial court erred in any of its rulings made with respect to the admission of evidence or that the court in any respect misinstructed the jury as to the law. The sole contention which is here urged as a reason for the reversal of the judgment is that the facts and circumstances surrounding the accident which resulted in appellant’s injuries as the same were developed by the evidence adduced during the trial conclusively demonstrate that the verdict of the jury is lacking in evidentiary support. Proper consideration of this contention requires a statement of the facts which were established by the evidence.

On October 12, 1933, at approximately 6 P. M. appellant, a child seven years of age, arrived on foot at the southeast corner of the intersection of Plumas Avenue and 'White’s

[84]

Bridge road in the city of Fresno. Appellant was accompanied by his sister Jennie, who was thirteen years of age, and by another sister and brother, whose ages do not appear. When the children had come to the intersection of the above-mentioned streets, Jennie Zulim told the other members of the party to remain at the southeast corner until she.returned. Jennie then crossed over White’s Bridge road to the northeast corner of the intersection for the purpose of visiting a grocery store which was located on the northeast corner. As she passed across the street she did not observe any automobiles approaching the intersection from the east. During Jennie’s absence the accident which caused appellant’s injuries occurred. The direct cause of appellant’s injuries appears to have been that the right rear wheel of an automobile passed over appellant’s body. This automobile was owned and operated by the respondent Van Ness, who was employed by respondent, Union Oil Company of California. The testimony of Van Ness, as to the occurrence of the accident was in no respect contradicted. He testified that he was en route to his home after leaving the office of his employer in the city of Fresno; that he approached the intersection at approximately 6 P. M. of the above-mentioned date; that it was then growing dark and the lights on his automobile had been turned on; that he approached the intersection at a speed of “probably 20 miles an hour”; that he retarded the speed of his automobile as he entered the intersection and proceeded through it at the rate of approximately 15 miles per hour; that he was looking in the direction in which his automobile was traveling and saw no one in the intersection as he passed into it; that he heard an exclamation and immediately afterward felt that the right rear wheel of the automobile had passed over something; that he brought his ear to a stop and alighted from it and then discovered appellant lying in the street near the center of the intersection.