Anderson v. Walters

PULLEN, P. J.

A jury awarded to plaintiff damages for the death of his minor son. From the judgment thereon this appeal is prosecuted. The record discloses that the deceased, a boy of ten years of age, in company with his mother, brother, sister and uncle were, in the

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month of August, 1931, traveling by automobile from Berkeley to Corning. The deceased and his mother were seated in the rear of the automobile. The deceased expressed a wish to stop at a service station, and as they reached a point about two miles south of Arbuclde, it then being about 7 o’clock in the morning, the driver of the car stopped some twelve or fifteen feet off the easterly paved portion of the highway across from the service station and in the middle of an intersecting county road. After the car had come to a complete stop, Donald, the deceased boy, stepped out of the car on the side nearest the highway and started to trot or skip diagonally across the highway toward the service station. At this moment defendant Walters was proceeding south along the highway driving a Ford truck loaded with approximately two tons of rice. He was traveling about a foot or two from the westerly edge of the paved portion of the highway at a speed of from twenty to twenty-five miles an hour. When the boy had reached a point beyond the center of the highway he was struck by the southbound truck, receiving injuries which caused his death.

The driver of the truck, Walters, testified he saw the car parked at the side of the road when he was approximately one hundred and fifty yards north and that he was from eighty to ninety feet away when he saw the boy start across the road. He further testified his brakes were in good condition and that he could stop his truck in twenty-five feet going at a speed of twenty-five miles per hour.

A witness for plaintiff testified that immediately after the accident defendant Walters admitted to him he was at fault. That he saw the boy when he was eighty or ninety feet away, but did not sound his horn at all and did not apply his brakes until after the accident. This conversation, however, was stoutly denied by defendant, but it was for the jury to determine that conflict.

Defendant urged as grounds for reversal that the deceased was guilty of contributory negligence as a matter of law, that the mother of the boy was likewise guilty of contributory negligence and that there was no showing of negligence on the part of defendant.