Bakos v. Shell Co. of California

California Court of Appeal Oct 4, 1928 No. Docket No. 3572.Published

Before: Preston

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Holding. The trial court erred in granting a nonsuit because the plaintiff presented sufficient evidence from which a jury could reasonably infer negligence on the part of the defendants, and such evidence must be viewed in the light most favorable to the plaintiff.

Issues

Whether the trial court erred in granting a motion for nonsuit when there was evidence from which a jury could infer negligence by the defendants.
Whether the testimony of an eyewitness, if believed, was sufficient to establish a prima facie case of negligence.

Disposition. reversed

Quotations verified verbatim against the opinion

“The motion admits the truth of plaintiff’s evidence, and every inference which can be legitimately drawn therefrom, and upon such motion the evidence should be interpreted most strongly against the defendants.”

“From this evidence, alone, the jury could have reasonably inferred negligence on the part of defendants in the operation of their truck and trailer.”

“If contradictory evidence has been given it must be disregarded.”

PRESTON (H. L.), J.,

pro tem.

This is an appeal by plaintiff Gust Bakos from a judgment of nonsuit in an action brought by him against the defendants for damages for the death of his minor son.

The complaint alleges that R. T. Kelly operated a heavy automobile oil truck belonging to defendant Shell Company of California, to which was attached a trailer in such a careless and negligent manner as to cause said trailer to collide with said minor child, Jimmie Bakos, who at said time was standing near the pavement of the road, awaiting an opportunity to cross the road in order to reach his home, which was on the opposite side of the road.

The answer of defendants denies any negligence on their part and pleads contributory negligence on the part of the deceased child. The answer also pleads negligence on the part of plaintiff in permitting said child to be upon the streets- or roads unattended.

The evidence shows that plaintiff’s son, Jimmie Bakos, was a child of the age of six and a half years. Between 2 and 3 o’clock on the afternoon of June 2, 1925, Jimmie Bakos, in company with a smaller boy, ran across the school yard towards the traveled and paved highway, leading from the city of Los Angeles to the town of Compton. The boys came to a complete stop about three feet from the edge of the pavement to permit a large Mack truck, with an eighteen-foot trailer attached to the rear end thereof, to pass in front of them. This truck and trailer belonged to defendant Shell Company of California. The truck was driven by the defendant Kelly on the right-hand side of the paved ° portion of the highway and about two feet from the edge of the pavement, towards the town of Compton, and at a speed of between twelve and fourteen miles an hour. The children did not move, but continued to stand in the same place, off of the paved portion of the road, while the truck and trailer were passing in front of them. The deceased, Jimmie Bakos, was struck by the trailer and the rear wheels of it passed over his body, killing him almost instantly.

Kelly, the driver of the truck, testified that he knew the school was located at that place and that he saw the children come across the school yard and approach the highway

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Bakos v. Shell Co. of California

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PRESTON (H. L.), J.,

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