Newsom v. Smiley

WOOD (W. J.), J. Plaintiff Richard Newsom, a hoy eight years of age, seeks to recover for injuries which he suffered when he was struck by a truck driven by defendant Smiley and owned by defendant Herington. His father seeks to recover for medical expenses. A jury returned a verdict in favor of defendants and plaintiffs have appealed from the ensuing judgment.

The accident occurred shortly before noon on April 16, 1940, at the intersection of Haviland Avenue and Camilla Street in the city of Whittier. According to the testimony of plaintiff Richard Newsom, which was introduced by stipulation, he had “no recollection whatever of any of the events occurring immediately prior to or at the time of the accident in question. ’ ’ Defendant Smiley testified that he was driving the truck northerly on Haviland Avenue at a speed of from 20 to 25 miles per hour; that as he approached to within 30 to 40 feet of the intersection of Haviland Avenue and Camilla Street he observed four boys, one riding a bicycle and the others running after him in the intersection; that the nearest boy to the bicycle was 3 or 4 feet behind the bicycle; that the boys appeared to be running in competition with the bicycle; that all of these boys passed the front of the truck and passed the center of Haviland Avenue before the accident; that these boys were strung out at a distance of about 8 to 10 feet between the boy on the bicycle and the last boy following him; that he did not see the fifth boy, who came in contact with his truck, until the boy jumped off the sidewalk into Haviland Avenue from behind the shrubbery on the parkway on Haviland Avenue; that when he observed the boy on the bicycle and those following him he immediately slowed down and applied his brakes and “watched them as they continued on past ’ ’; that he stopped his car within 6 feet after the impact.

Appellants contend that they were unduly curtailed in their cross-examination of defendant Smiley. The record discloses: “A. After you observed these boys in the street going across you didn’t make any conscious effort to determine whether or not there were any other boys coming on the sidewalk, did you? Mr. Smiley: Well, I was looking [629]ahead. Q. You didn’t make any conscious effort to determine whether or not there were any other boys coming on that sidewalk f Mr. Smiley: What do you mean by that ? Mr. Spray : Objected to as calling for the conclusion of the witness. Let him state what he did.” Counsel for appellants offered to prove that at the time of the taking of his deposition the witness had answered the same question: “I guess not, except I was looking ahead.” In sustaining the objection the court stated that the question would be allowed if propounded in the proper form.