McCutcheon v. Thompson

BARNARD, P. J. This is an action for damages resulting from the death of a minor son of the plaintiff. The boy, who was about three and one-half years of age, was struck by a light delivery truck driven by the defendant Thompson and owned by the other defendants, by whom he was employed. The accident happened about 1 o’clock p. m. on August 14, 1941, on North Chester Avenue, near Bakersfield. North Chester Avenue is the leading traffic arterial connecting Bakersfield with a suburb. It had a 20-foot concrete pavement with a white center line and with eight-foot oiled shoulders, beyond which there were dirt shoulders of about the same width. The parents of the boy lived near the intersection of Belle Avenue with North Chester Avenue, which runs north and south, and the accident occurred a short distance north of this intersection at a point where a driveway came out of a clump of trees on the west side of North Chester Avenue. At that time some men with a tractor were removing some trees on the east side of North Chester Avenue and about opposite this driveway. Shortly before the accident the boy in question had been seen in this driveway with two older boys. The other boys crossed the highway and a little later as this boy was attempting to follow them, running from west to east across the highway, he was struck by the defendants’ automobile and killed.

This action which followed was tried by the court without a jury. The court found in all respects in favor of the plaintiff and the defendants have appealed from the judgment.

It is first contended that there is no substantial evidence to support the finding of negligence on the part of the defendant driver. It appears that Thompson was driving north on the east side of North Chester Ayenue for the purpose of [691]delivering a pump for which there had been a “hurry” call. As he approached the scene of the accident another car was coming south on the west side of North Chester Avenue, driven by a man named Dailey. Dailey testified that when he was about 100 feet north of the driveway to which we have referred he saw the boy run out from the opening and start toward the road; that he slowed down a little because he was afraid the boy might run into the street; that the boy stopped about four feet west of the edge of the concrete; that the boy was “dancing around” and was obviously “poised waiting to go across the highway”; that after he passed the boy he looked in his rear view mirror and saw the boy run across the street until he was hit by the other car; and that he had just passed the Thompson car and estimated that he- was only 40 feet past the child when it was struck.