Lotta v. City of Oakland

California Court of Appeal Dec 28, 1944 No. Civ. 12699Published

Before: Nourse

AI Brief

AI-generated · verify before citing

Holding. The court held that the issues of negligence, contributory negligence, and unavoidable accident were questions of fact for the jury to determine, as no fixed standard of conduct was prescribed by statute or judicial decision under the circumstances.

Issues

Whether the driver was negligent as a matter of law.
Whether the father was contributorily negligent as a matter of law.
Whether the trial court erred in instructing the jury on unavoidable accident.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The case is one where, upon the evidence recited, no standard of conduct was prescribed either by statute or by judicial decision. The issue of negligence was therefore properly left to the jury.”

“The authorities hold that a general denial of negligence permits a defendant to rely upon the defense of unavoidable accident, without special pleading.”

NOURSE, P. J.

This is an appeal from a judgment on a jury verdict for defendants in an action for damages brought by the plaintiff who was the father of a five-year-old-boy who was killed by a truck driven by defendant Millar while in the service of the other defendants. The appeal is brought up on a bill of exceptions.

On March 3, 1942, plaintiff, who was employed in moving trees for the spring garden show in a public park owned by the city of Oakland, brought his son to the park at about 4:30 p. m. The day was clear and sunny. The boy spoke to the men who were moving the tree and then his father took him to a spot about 30 feet away and told him to play in the sunshine. The tree was a large one, and a hole about six feet deep had been dug around the roots. The plaintiff got in the hole in order to work with the other men in boxing the tree. He could not see over the rim of the hole. After a few minutes the boy came to the rim of the hole. His father told him to stay away and took him out on the lawn again. There were two trucks parked on the. lawn near the hole; one a winch truck and one a stake truck. When last seen by any of the witnesses the boy was playing on the lawn

[413]

about 10 feet in front of the stake truck with some tennis balls which Millar gave him to play with. The foreman directed Millar to take the stake truck to the tool yard to get some planks which were needed in order to move the tree. He got into the truck from the left and drove it across the lawn, turning to the left to go to the tool yard. The boy was run over by the right rear wheel of the truck. No one had seen him for five minutes prior to the accident. No one witnessed the accident. The driver was unaware of the accident until he was informed of it on his return from the tool yard.

Appellant contends that the driver was negligent as a matter of law. He further contends that appellant could not, as a matter of law, be charged with contributory negligence and that, if he was negligent, his negligence was not a proximate cause of the accident. His final contention is that the giving of the instruction on unavoidable accident was error.

Negligence as a matter of law, and negligence

per se,

Lotta v. City of Oakland

AI Brief

NOURSE, P. J.

More from California Court of Appeal

Related research

AI Brief