Soda v. Marriott

THOMPSON (R. L.), J.

This is an appeal from a judgment in favor of the defendants in a suit for damages for the killing of a child as the result of alleged negligence in the operation of an automobile. A reversal of the judgment is sought on the sole ground that erroneous instructions were given to the jury at the request of the defendants.

The defendant, Mrs. Marriott, was driving a Dodge sedan automobile southerly along Riverside Avenue in Roseville, on the afternoon of January 23, 1927. She had just passed the city limits when the accident occurred. The street was eighty feet in width with a twenty-foot paved strip in the center thereof. The spaces between the paved portion and the curbings on either side were surfaced with crushed granite. Riverside Avenue connected with the Sacramento highway just beyond the point where the accident occurred. The traffic was light. No cars were parked at the sides of the street. Only a few machines were

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traveling in either direction. A grocery-store was situated on the easterly side of this avenue near the city line. Peter, aged four and a half years, the infant child of the plaintiff, accompanied Mary, his adult sister, to this store. The child was given a piece of candy, and the pair left the store. Peter started to run westerly across the street, pursued by his sister. Mr. Lyons, who was then about 150 feet away, was driving his automobile along the highway toward Eoseville. He saw Mary in close pursuit of her brother and, stopping his machine at the curbing near the store, he witnessed the tragedy. Mr. Lyons testified: “I was traveling north, going from Sacramento to Eoseville. Approximately 50 feet from Lee’s store I noticed a boy run from the store and a woman chasing him. She made a grab for him and missed him, made a second attempt and missed him again. He darted across the highway hurriedly. ... I noticed the child first 150 feet (away).”

Mrs. Marriott, who was driving the defendants’ machine at the time of the accident, testified she had just left her cousin’s home on Earl Street, which was but a few blocks away, and, accompanied by her husband, daughter, uncle and nephew, she was proceeding along Eiverside Avenue, within the twenty-mile zone, near the city limits, at the rate of fifteen or twenty miles an hour, when she saw the lady pursuing the child across the highway directly toward her machine; that they had come from behind a car which was driving northerly along the easterly side of the avenue; that when they were quite near the automobile the lady grasped the child’s sweater, but failed to hold it, and the child plunged directly in front of the machine, and was struck by the bumper and carried some distance before the car could be stopped. Mrs. Marriott said she had no warning of the approach of the child, and was unable to sound the horn or prevent the accident. She did apply the brakes, but the machine rolled some distance before it was stopped. She said, “As I was driving along there was traffic coming my way toward Eoseville on my left, and the first thing I knew I saw a car stop suddenly and turn to the right of the. road, and from a car that was driving in front of that I saw a little blond child running out just as fast as he ■could run and in my path, being followed by a woman who was trying to reach for him or stop him, and she did