Neilson v. Walker

THE COURT.

An action to recover damages for personal injuries to plaintiff, Douglas Neilson, a minor, which were alleged to have been caused by the negligence of defendant Jack Walker, who is also a minor. These parties will be hereinafter referred to as the plaintiff and defendant, respectively.

It was stipulated at the trial that P. J. Walker, who was joined as a defendant and is the father of Jack Walker, had prior to the accident signed the latter’s application for an automobile operator’s license.

The answer denied negligence on the part of defendant and pleaded the contributory negligence of the plaintiff.

A jury returned a verdict against both defendants, who have appealed from the judgment entered thereon.

As grounds for the appeal it is contended that plaintiff was guilty of contributory negligence as a matter of law, and that the court erred in denying a motion for nonsuit and in instructing the jury.

The injuries occurred at about 8 o’clock P. M. on January 20, 1928, while the plaintiff, a newspaper carrier, was proceeding on his bicycle in an easterly direction along Arroyo Avenue in the city of Piedmont. This avenue runs approximately east and west. Two other streets, namely, Upper Grand Avenue, and further east, Lower Grand Avenue, running from south to north and from the southeast to the northeast, respectively, end at Arroyo Avenue. There is a fourteen per cent easterly slope on the latter avenue

[25]

between the other streets mentioned. The defendant with two others was driving a Star roadster automobile west on Arroyo Avenue and, according to certain of the testimony, his course was to the left of the center line of the street. Instead of passing to the right of the intersection of the center lines of Arroyo and Lower Grand Avenues and thence along the latter avenue the evidence shows that he turned into Lower Grand Avenue, keeping to the left of its intersection, and continued his course on the left of the center line of the street. There was evidence showing that the plaintiff, who was coasting down the slope mentioned, had entered the intersection of Arroyo and Lower Grand Avenues and was crossing the center line of the latter street when the defendant started to make the turn described. Seeing the danger of an accident the plaintiff in an attempt to avoid it swerved to his right, but a collision, which caused him to suffer serious injury, occurred at a point about eight feet west of the easterly curb of Lower Grand Avenue. The evidence also shows that plaintiff entered the intersection at a rate of speed of about twenty miles per hour and, according to the testimony, the defendant was traveling at about the same rate. The night was dark, but clear, and the testimony indicates that due to the proximity of several electric lights the street and the scene of the accident were well lighted; and in this connection a witness, who was driving a car some distance behind the defendant, testified that when he reached the railroad which crosses Arroyo Avenue nearly 300 feet east of the intersection mentioned he saw the plaintiff approaching. It is admitted that there was no light on the bicycle and that its brake was not applied.