Ross v. Story

ROTH, J., pro tem. This appeal results from a judgment for plaintiff entered upon a verdict of a jury in an action to recover damages for personal injuries suffered by plaintiff, a minor of the age of ten years, arising out of a collision between plaintiff, a pedestrian, and defendant’s automobile at or near the intersection of Vermont and Florence Avenues in the city of Los Angeles, at 7 o ’clock on the evening of February 19, 1934. Immediately prior to the accident., defendant was driving his automobile south on Vermont Avenue; approaching the intersection of Vermont and Florence, the lights being green, he made a right-hand turn westerly on Florence, which latter street is 70 feet wide from curb to curb. It was raining and the streets were wet. The intersection, however, was well lighted. Plaintiff was wearing a leather jacket, boots, and his father’s rain hat which was something like a fireman’s hat. According to plaintiff’s testimony, he had been standing at the north curb on Florence Avenue at Vermont waiting for the lights to change. When they changed to green, he stepped off the curb at the north curb line of Florence Avenue, and proceeded across Florence in a southerly direction. Plaintiff testified that he stepped off the curb into the pedestrian zone and continued to travel therein. Defendant contended that the boy stepped off the north curb line at a point 30 to 35 feet west of the westerly curb line of Vermont Avenue, and that he did not know that he had struck plaintiff; admitting, however, that he knew he hit something, but thought he ran over a traffic button. It is difficult to accept this contention, in view of defendant’s admission that the only impact he felt was 30 to 35 feet west of the west curb line of Vermont Avenue, and for the further reason that defendant testified he knew there was no traffic button there. Further, physical evidence showed that the westerly edge of the largest pool of blood in the street was five steps west of the center of the cross-walk and nine steps south of the northerly curb of Florence Avenue. The physical evidence corroborates plain[309]tiff’s theory that he was first struck by the automobile, thrown a few feet and then run over. After his car had struck plaintiff, defendant did not stop, but was followed by a witness, who saw the left wheels of defendant’s ear run over the boy. Defendant was overtaken about one-half mile west of Florence Avenue. There was evidence that the defendant had been drinking and was intoxicated at the time (defendant admitted he had taken two drinks of gin); and that the windshield wiper on defendant’s automobile was not, and for some time had not been, operating; that the entire windshield was dirty and that the brakes were bad. The evidence also showed that defendant’s automobile had a depression on the left side of the radiator cap; that the left headlight was bent back and polished off on the inside, and that the left side of the bumper had been polished off in front, but the rest of the bumper was dirty. There were no eye-witnesses to the actual impact between the automobile and the boy, although, as already stated, one of the witnesses saw the left wheels of defendant’s automobile run over the boy’s body. Defendant’s contention in this respect is that the boy slipped' and fell in front of his automobile. There is no direct evidence as to the speed of defendant’s automobile at the time of the impact, but there is testimony to the effect- that the witness, who pursued defendant, had to travel fifty miles per hour to overtake the defendant, and there is nothing in the record to show* whether or not defendant increased or decreased his speed after the impact.