Jones v. Davies

[390]

TURPENTINE, J.,

pro

tem.

Plaintiffs (a minor child and his father) filed suit against defendants for damages arising out of collision between plaintiff’s minor child and an a,utomobile driven by one defendant for the other defendant in the scope of his employment. Plaintiffs recovered judgment and defendants appeal.

The minor plaintiff, a boy ten years old at the time of the accident, was playing on the east side of the highway running through the city of Delano at about 8 o’clock in the evening. He approached the easterly side of the highway, stopped, observed the traffic, watched two cars pass in opposite directions, and then started to cross the highway in the middle of the block. He testified, in substance, that he waited on the easterly side of the highway for two cars to go by, one going north and one going south, after which he looked up and down the highway and started across; that when he was a little beyond the center of the street he was struck by defendants’ automobile and did not see it before he was hit; that after he started running across the street he looked but did not see defendants’ automobile. The defendant driver testified that he did not see the boy before the car struck him. He placed the speed of his automobile at between fifteen and eighteen miles per hour. Some witnesses placed it at thirty-five miles per hour. The lights on the automobile were burning. The evidence showed that there were a number of business houses along the highway in the immediate proximity of the accident, and some traffic on the highway.

The record brings us inevitably to the conclusion that under the facts of this case, it was a question for the trial judge to determine whether or not the driver was negligent, and whether his negligence was a proximate cause of the accident and injuries. “From this picture the jury could with reason conclude that defendant either was not watching the street, which it was his duty to do, or did not have his car under that control which the law requires of a driver. If failing in either duty, his failure was negligence proximately causing the accident.”

(Scott

v.