McGarry v. Coyle

TYLER, P. J.

Action for personal injuries.

The appeal is from a judgment in favor of defendant. Plaintiff is the eight year old minor daughter of Neil McGarry, who is her guardian

ad litem.

The complaint is in two counts. The first charges in substance that the personal injuries suffered by the minor child were inflicted upon

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her when she was crossing Geary Street at Twenty-fourth Avenue, as a pedestrian, by the negligence of defendant, in that such defendant carelessly drove his automobile and struck plaintiff, fracturing her skull and right pelvis bone, shocking her spine and nervous system and injuring her brain. The second count is based upon the theory that defendant had the last clear chance to avoid seriously injuring the child after she had been knocked down by and was lying under defendant’s machine. This count alleges that while Clara McGarry was in such position and after the automobile had been brought to a stop, defendant carelessly and negligently started it and ran over and across the body of said minor, so that the right-hand wheel thereof passed over her chest and body inflicting permanent and serious injuries.

The defendant by his answer denied negligence and alleged that plaintiff was guilty of contributory negligence in that she failed to use ordinary care to protect herself from injury, and carelessly and negligently ran, without looking in either direction for approaching automobiles, into and against defendant’s car. The case was tried before the court sitting without a jury.

It appeared in evidence that the accident occurred on Sunday, April 15, 1928. The defendant was driving his automobile in an easterly direction on Geary Street. When he arrived at Twenty-fourth Avenue, the traffic was stopped by the signal. About the time the traffic signal changed to “Go”, a west-bound municipal car stopped at its usual place (the northeast corner of the intersection) to discharge and receive passengers. When defendant proceeded to cross Twenty-fourth Avenue, he was traveling at the rate of six to eight miles an hour and continued proceeding in such direction on the tracks of the east-bound car, accelerating his speed to get into high gear. When he was about five or six feet behind the rear end of the street-car he was trailing, he saw plaintiff run out from behind this west-bound car. She was running very fast with her eyes on the pavement. Without altering his direction or sounding his horn, defendant called upon plaintiff to look out, and reached for and applied his emergency brake, but the car knocked her down and passed over her. Defendant felt the impact of her body as it hit the battery box located under his seat. He then stopped his automobile, shut off