Cunningham v. Cox

SPENCE, J.

Plaintiff sought to recover damages for the death of his minor son, Charles N. Cunningham, Jr., alleging that said death was caused by the negligence of the

[687]

defendant in operating his automobile. Defendant denied any negligence on his part and pleaded contributory negligence on the part of the deceased boy. The cause was tried with a jury and a verdict was rendered in favor of the defendant. From the judgment entered upon the verdict plaintiff appeals.

The accident occurred at approximately 7:20 on the night of January 29, 1931, on the Saratoga-San Jose road. This road runs in a general westerly direction through an orchard section of Santa Clara County from San Jose to Sara-toga. A short distance westerly from the scene of the accident said road is intersected by the Saratoga-Mountain View road. There is an interurban ear track in the center of the road situated in the middle of a strip of asphalt surfacing about nine feet in width. The balance of the improved portion of the road consists of two concrete strips, each about ten feet in width, located on either side of and immediately adjoining the asphalt strip. Both the defendant and the deceased boy lived in the vicinity of the scene of the accident. On the night in question the defendant, accompanied by his wife, was returning from Saratoga and was driving his Ford sedan automobile along said road in an easterly direction. He intended to stop at the Oldham residence on the north side of the highway and as the night was dark he drove his car over the car track and on to the north side of the highway some little distance before reaching his intended destination. The deceased, a boy of fourteen years, and another younger boy named Robert La Fontain, were proceeding on foot in a westerly direction along the highway from' the residence of the deceased boy toward Saratoga. There is comparatively little conflict in the testimony regarding the manner in which the accident happened. The defendant’s testimony, corroborated by that of his wife, was that he was driving slowly at a speed of not over twenty miles per hour; that his lights were lit and, although he was looking ahead in the direction in which he was proceeding, he saw nothing on the highway until just before the collision; that the small boy (Robert La Fontain) ran “right close in front of the machine” from defendant’s right side “like that (indicating) and just as he got across the other boy (the deceased)