Richardson v. Ribosso

NOURSE, P. J.

Plaintiffs sued for personal injuries to Herman Work, a minor. The cause was tried with a jury and defendant had a verdict. Plaintiffs appeal upon a bill of exceptions.

The single question presented on the appeal is the sufficiency of the evidence to justify the verdict. It is the contention of appellants that the evidence discloses negligence on the part of defendant, a want of contributory negligence on the part of the minor, and that the defendant had the last clear chance to avoid the injury. As the jury found adversely to appellants it is sufficient to make but a short statement of the evidence and in this statement we must, of course, give to the respondent the most favorable construction of the testimony where any conflict arises.

At about 4 o’clock in the afternoon of January 24, 1929, the defendant was driving his automobile in a southerly direction on York Street in the city and county of San Francisco, and when he had reached the middle of the block between Twenty-first and Twenty-second Streets the minor, who was standing in a place of safety on the easterly-sidewalk, suddenly started to run obliquely across the street in a southwesterly direction, and while so running, and without looking in the direction in which he was traveling, he ran into the left side of defendant’s automobile, striking it at a point near the left rear wheel. The boy was seven years of age, in good health and mentally bright and active. The defendant saw the boy while he was playing on the easterly sidewalk with other children; saw him suddenly dart across the street, but the defendant continued along his course at a speed of about ten miles per hour and did not sound his horn or give any other signal of' danger. The reasonable inference to be drawn from this evidence is that, after the defendant had passed the course upon which the boy was traveling, he had no reason to anticipate that the boy would continue without looking, and this inference is

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fully supported by the boy’s own testimony to the effect that before he started across the street he saw defendant’s ear approaching.

Manifestly the evidence supports the verdict on the want of negligence on the part of respondent, but the total absence of care on the part of the minor is so apparent that the jury’s finding of contributory negligence on his part is alone sufficient to support the verdict. In this respect the case is controlled by