Long v. Bevers

MARKS, J. This is an appeal from a judgment awarding plaintiff damages suffered by reason of the death of James M. Long, his minor son.

Defendant urges three grounds for a reversal of the judgment: (1) that the evidence shows no negligence on his part; (2) that it shows contributory negligence as a matter of law on the part of James; (3) errors of the trial court in rulings on the admissibility of evidence.

On August 19, 1934, James M. Long was of the age of thirteen years. He was in the seventh grade in junior high school and was an intelligent, quiclc-minded and well-developed youth. He was the possessor of a bicycle. His father on numerous occasions had told him not to hang onto the sides of vehicles when riding his bicycle on public roads and had explained to him the danger of injury which is incident to such conduct.

On August 19th, James and John Bach, his youthful friend, left Fresno on their bicycles and traveled to Selma over Highway Number 99. They started their return journey from that city about 2 o’clock in the afternoon. When a short distance north of Selma they took hold of the right side of the body of a truck which was traveling northerly on Highway Number 99. James took hold just to the rear of the driver’s cab. John was holding on about three feet from the rear end. The truck body was wide and occupied the major portion of the east half of the paved portion of the highway. The accident happened about one and one-half miles north of Selma at a point where a railroad spur or switch crosses Highway Number 99.

At the place of the accident there is a paved strip twenty feet wide in the highway, with a four-foot hard oiled shoulder on the easterly side of the pavement, and about six feet of dirt roadway between the shoulder and a fence along a railroad right of way paralleling the highway.

The two boys were riding on their bicycles with the wheels following the dividing line between the pavement and the oiled shoulder. The truck was traveling at a speed of about thirty miles an hour. As it approached the railroad crossing James released his hold on the truck body and fell onto the oiled shoulder. His badly crushed body was found on [50]the dirt portion of the roadway about halfway between the easterly edge of the oiled shoulder and the fence. John retained his hold on the truck until he had passed over the railroad crossing. He rode on past the point where James had fallen and was between the truck and James as the truck proceeded north. Because of this fact, and the further fact that several witnesses testified that the truck did not run over James, it is well established that he was not crushed by that vehicle.