Akoboff v. Dusenbury

WHITE, J. Plaintiff brought this action for damages for the wrongful death of her minor son, who died from the effects of injuries received when he was struck and run over by an automobile operated by the defendant Frank Dusenbury. John Maeardichian, father of the child and former husband of the plaintiff, was joined as a defendant, but did not appear at the trial. Trial was commenced before a jury, but at the conclusion of plaintiff’s evidence defendant Dusenbury chose to waive the jury, and no objection being interposed by plaintiff, the trial proceeded before the court. The trial judge found as facts that the sole proximate cause of the accident was the negligence of the deceased minor child and that so far as defendant Dusenbury was concerned the accident was unavoidable and “resulted without negligence or carelessness” upon his part. Judgment was accordingly entered that plaintiff take nothing from which judgment she prosecutes this appeal.

From the record it appears that on the morning of December 12, 1936, the deceased, a boy of the age of nine years, attempted to cross from the north to the south side of Anaheim-Telegraph Road, an “artsrial highway” in the City of Los Angeles, at a point about 60 feet east of its intersection with Ford Boulevard. When the boy reached the center of the street he broke into a run, and while running was struck by the car of defendant Dusenbury, who was driving east on the south side of the street. At the scene of the accident Anaheim-Telegraph Road is 70 feet wide; it was a clear day and the traffic was light.

The witness Mike Akoboff testified that he saw the accident from the sidewalk; that the boy looked both ways before stepping into the street, and then walked straight across until he reached the center of the street, when he began to run and was struck at a point about 10 feet from the opposite sidewalk. This witness estimated the speed of the car at from [17545] to 55 miles per hour, but stated that he did not see the ear until it struck the boy, and that it came to a stop in about 25 feet after the impact, without skidding. Another witness, Charles Mainer, testified that he first saw the ear as one of its rear wheels was passing over the boy, and that the car stopped in about one length or 15 feet; that at the time he saw the car it was traveling between 15 and 20 miles per hour. Akoboff testified that there was no other traffic on the street, and Mainer stated that he did not see any other cars. The defendant Dusenbury, called as a witness in his own behalf, testified that he was traveling between 20 and 25 miles per hour,' and that he first saw the boy “a fraction of a second” before the impact, when he was about 6 feet away; that he applied his brakes, but the car struck the boy, passed over him and went on about a length and a half before coming to a stop.