Greeneich v. Knoll

PINCH, P. J.

Plaintiff, a widow, sued to recover damages for the death of her minor son, alleged to have been caused by the negligence of the defendant. She was given judgment and the defendant has appealed.

Respondent objects to the consideration of the evidence on the ground that appellant’s request for a- transcript thereof was not filed in time. To uphold the contention would be to affirm the judgment, no error appearing upon the face of the judgment-roll. A decision of the question, however, is unnecessary, as the judgment must be affirmed on the merits.

Plaintiff’s son was of the age of thirteen years and eleven months and was in the eighth grade of the elementary schools. He was in charge of a newspaper route and during the evening of December 9, 1922, he was engaged in delivering papers to residents along Cherokee Lane, a paved highway running in a southerly direction from the town of Lodi. He was riding a bicycle without a light or reflex mirror, the light which he had been accustomed to use being then in a repair-shop. The evening was rainy and the pavement was wet and slippery.

Shortly before 6 o’clock of the same evening the defendant’s son, of the age of twenty years, was driving one of defendant’s trucks in a northerly direction along Cherokee Lane. The truck, which was of two and a half tons carrying capacity, was loaded with about 130 empty grape boxes, the weight of the truck and boxes being 7,000 pounds. It was equipped with presto headlights and kerosene dash-lights. The gas supply of the headlights became exhausted during the trip and only the dashlights were burning at the time of the accident. The driver of the truck and a boy of the age of eleven years were seated in the cab, which was entirely inclosed, except that the windshield was open to give a better view of the road ahead. An automobile was following the truck at a distance estimated by the witnesses to be from 50 to 100 feet therefrom. Another automobile was traveling south along the same road. When these two automobiles were about opposite each other a loud crash was heard and two of the empty boxes fell off the truck. The

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truck continued along the road to the north, but the two au-' tomobiles at once came to a stop. The body of plaintiff’s son was found lying on the east half of the pavement, the skull and face so crushed as to cause instant death, several teeth lying on the pavement, and blood flowing from the crushed head. The broken bicycle, which evidently the boy had been riding, was lying near the body. “The body was lying just a trifle further north than the bicycle and the' boxes were on further than that, about . . . three or four feet.” A witness who was sitting in his house 237 feet dis-, tant from the scene of the accident, with the doors and windows closed, testified that he heard the crash, that “it was" a quick crash.” None of the occupants of the two automobiles saw the boy prior to the accident. Defendant’s son and the boy with him testified that they did not see the boy or his bicycle at any time. The driver of the automobile which had been going south followed and passed the truck after the accident, alighted from his machine and signaled the driver of the truck to stop, but the latter continued to go north. The driver of the machine again followed and passed the truck and succeeded in halting it near the edge of the town of Lodi. He testified that he asked defendant’s son “if he realized ... he had run over a boy and killed him”; that defendant’s son replied, “No, if anybody run over a boy and killed him, you did. . . . Ask the little boy if we run over anybody”; and that the little boy said, “No, we didn’t run over anybody.” 0. R. Fisher, a deputy sheriff and traffic officer of San Joaquin County, testified that he tested the dashlights on the truck two days after the accident; that at the time the test was made it was a very dark night and not raining; that the lights were so dim that, sitting in the driver’s seat, with the windshield open, he could not see a man standing in front of the machine at a greater distance than about ten feet. The defendant’s son testified that at the time the test was made the lights were in the same condition as they were at the time of the accident. The driver of the automobile which was following the truck immediately before the accident testified that he had been traveling between twenty and twenty-five miles an hour, that when he saw the truck he slowed down to between sixteen and twenty miles an hour and that