Hensley v. Sellers

PEEK, Acting P. J.

By her guardian

ad litem

the minor plaintiff sought damages for personal injuries alleged to have resulted from the negligent operation by the defendant Dawson of a truck owned by the defendants Sellers, a partnership doing business as the Coca Cola Bottling Company of Sacramento, which we shall refer to as the company. Plaintiff appeals from the judgment entered pursuant to a verdict of the jury in favor of defendants. Since an order denying a new trial is not appealable, her purported appeal therefrom must be dismissed.

Our examination of the record leads to the conclusion that the ease must be reversed by reason of the failure of the trial court to give instructions on the doctrine of the last clear chance.

The evidence when viewed in the light “. . . most favorable to the contention that the doctrine is applicable ...”

(Selinsky

v.

Olsen,

38 Cal.2d 102 [237 P.2d 645]) shows that while plaintiff was diagonally crossing Riverside Avenue in Yuba County she was struck by a 1%-ton Pord truck equipped for the delivery of soft drinks and owned by the defendant company. At that point Riverside Avenue-is approximately 20 feet wide and runs generally in a northerly-southerly direction. There are neither curbs nor sidewalks on either side of the avenue. The area is residential and was posted at 25 miles per hour. At the time of day when the accident occurred the street is

[119]

used by numerous school buses discharging children who attend a nearby school. It is also used by a considerable number of children who walk to and from their homes. It further appears that there were only three pedestrian crossings within a distance of a mile and one-half, and that the school children crossed the street at random. Also, because of the physical characteristics of the area, children played along the streets. These facts admittedly were known by the driver of the truck, the defendant Dawson, who in making his rounds of deliveries had traveled along Riverside Avenue once each week, usually between 2:30 and 3:30 p. m., for a period of two and one-half years. On the date of the accident he was proceeding south on Riverside Avenue. As he neared the point of impact he noticed a northbound school bus approximately 100 to 150 feet in front of him. It was stopped to discharge school children and its red warning lights were flashing. Although the plaintiff could remember no car parked immediately to the rear of the school bus, Dawson testified such a ear was so parked; that it had just begun to move out from its parked position as he approached, and that plaintiff was behind this car. His testimony was that at that time his speed was approximately 20 to 30 miles or more per hour. He further testified he saw the plaintiff for a couple of seconds while she stood at the edge of the pavement and before she started to cross the street. The plaintiff had been on the east side of the street looking at a puppy which her parents were going to get for her. From the exhibits there appears to be a considerable distance between the fence at the yard where the puppy was and the edge of the pavement. While our examination of the record has failed to produce any statement therein as to the exact distance from the fence to the paved portion of the highway, plaintiff in her reply brief has stated it to be 50 feet, which statement has not been denied. According to the plaintiff, before crossing Riverside Avenue she looked in both directions and seeing no approaching vehicles started running across the street diagonally in a southwesterly direction. This would have placed her in such position that her back was toward the approaching truck. As she was stepping off the pavement on the west side she turned her head and saw the front of the truck just before it hit her. When the ambulance arrived to take her to a hospital she was near the center of the pavement.