Dilger v. Whittier

SHAW, J.

This is an action brought by plaintiff, a minor four years of age, to recover damages for personal injuries sustained while playing in a vacant lot adjoining her father’s place of business, as a result of being struck by an automobile driven by one Earl Oldham, which, it is claimed, was diverted from.the roadway and precipitated against plaintiff by reason of colliding with another automobile negligently operated by defendant. The case was tried by a jury, which rendered a verdict for plaintiff in the sum of one thousand dollars, for which judgment was entered in her favor, and from which, and an order denying his motion for a new trial, defendant' appeals.

Appellant’s chief contention is that the verdict is not justified by the evidence, in that it fails to show that defendant was guilty of any negligence in operating his car, but, on the contrary, shows that the injury sustained was due to Oldham’s negligence.

Not only is the evidence touching the action of both Oldham and defendant in operating their respective cars conflicting, but the plat of the location and position of the cars used by the witnesses in testifying is not before us; hence much of the testimony is meaningless. No purpose could be served by an extended reference to the conflicting evidence. Suffice it to say, there appears to be testimony which

tended

to show and which, when illustrated by the plat in connection with which it was given,

rmght,

and therefore since it is not brought- up

[17]

we must assume that

it did,

clearly justify the jury in finding that the injury was due solely and alone to defendant’s negligence in operating his car.

The accident occurred in the unincorporated town of Fellows, in Kern County, through which a highway, known as the Midway Road, extended north and south. The father of the plaintiff, W. J. Dilger, had a place of business on the east side of this highway, which, between the sidewalks, was some forty-seven feet in width. Adjoining Dilger’s place of business on the north were two vacant lots, on one of which and next to the northwest corner of her father’s house plaintiff was playing. Defendant was driving a Cadillac car on the