Muller v. Standard Oil Co.

WILBUR, J.

Peter Muller, a boy of four years of age, while riding on a sidewalk on the west side of San Pedro Street at its crossing with the alley midway between Fourth and Boyd Streets in Los Angeles, was killed by being crushed-under the right rear wheel of a five-ton oil truck owned by the defendant, Standard Oil Company, driven by defendant Bechtel, an employee. The truck was proceeding easterly out of the alley across the sidewalk and on to San Pedro Streef. The father, John Muller, sues for damages caused to himself by the death of said child, and alleges that the same was due to the negligence of the driver of the truck. Judgment, after verdict for five thousand dollars, was in favor of the plaintiff. Defendants appeal.

The testimony shows, without contradiction, that the truck was being operated very slowly, between three and five miles an hour. The driver testified that he looked up and down the sidewalk and the street and that he sounded his horn when' within thirty or forty feet of the sidewalk; that he did not see the child or know of the accident until some bystander yelled “Stop”; that he stopped within a few feet and found on looking back that the child had been killed. On the south side of the alley is the north wall of the Santa Rosa Hotel, which extends to the sidewalk, and the front or east side of the hotel is flush with the sidewalk. On the north side of the alley and flush with the edge of the alley is a one-story dwelling, the front of which is seven and a half feet from the sidewalk line, but in front of which a porch extends several feet toward the sidewalk. Next to that house and within forty

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feet of the alley plaintiff resided. Respondent’s theory is that the child was riding south on the sidewalk on his tricycle and was struck by some portion of the front end of the truck and thrown underneath the truck, falling in front of the rear wheel on the opposite side. Appellant's theory is that the boy rode directly under the truck between the front and rear wheels and fell in front of the rear wheel on the opposite side. The city of Los Angeles has an ordinance prohibiting the use of tricycles upon sidewalks. The appellants contend not only that they were not negligent, but-that the child and its parents were guilty of negligence. At the conclusion of plaintiff’s testimony appellants moved for a nonsuit, upon the ground that the evidence showed that the child was negligent, in violating a municipal ordinance, and that the parents were negligent in allowing him to ride upon the sidewalk on his tricycle. The motion was denied, and- the denial of this motion is now urged as error.' The court instructed the jury that while it was negligence