Bakos v. Shell Company of California

CRAIG, J.

The appellant instituted an action for damages against the respondents alleging that as owner and driver respectively of a truck and trailer, they negligently caused the fatal injury of his son. Judgment was entered in accordance with a verdict in favor of the defendants and the plaintiff appealed.

The respondent Kelly was driving a large truck to which was attached a trailer at a legal distance to the rear, at a rate of about thirteen or fourteen miles per hour, upon a paved thoroughfare, at the right side of which and about twelve feet distant was an embankment. As he passed a vacant, uninclosed area, he observed two small children, one of whom proved to be appellant’s boy, about six and one-half years of age, run from the vacant lot to said embankment, where they stopped. The driver of another machine, who witnessed the accident, testified: “They stopped just about the front end of the truck, and just as quick as the back end of the truck began to come past them, they started down off of that embankment and right in between the truck and trailer and one of them dropped back and the other one didn’t and both wheels of the trailer ran over the little fellow.”

Evidence tending to show that the deceased stood nearer the line of travel than twelve feet and that the

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trailer swayed or vacillated as it passed him was introduced by the plaintiff. Offered testimony to the effect that wheel marks were seen outside the paved roadway some time after the accident was excluded upon objection by the defendant. This is assigned as error upon the ground that it was not too remote and might have established the fact that the boy was struck by the framework of the trailer. While this evidence might have been received without prejudicial error as indicated by authorities cited since the deceased ran from the place of safety where Kelly saw him standing, and was by all of the evidence shown to have been found lying in the path of the trailer, we cannot say as a matter of law that the suggested conflict of evidence would have tended to charge the driver with a greater degree of care. There is no slight suggestion in the record that he could have anticipated such reckless impulses of the children as heretofore outlined after he saw them stop. Under similar circumstances, where drivers had no knowledge of the attempt or intentions of minors to board moving trucks, it has been held that the injuries were not caused by wanton or wilful or any negligence, or by any absence of care, on the part of the drivers.