Langham v. Norlander

YORK, P. J. The complaint herein alleged generally that the defendant so negligently, carelessly and unlawfully, op[544]erated his automobile while backing it out of a private driveway, that he ran over the minor plaintiff, a child aged sixteen months, “thereby throwing him to the ground with great force and "violence, ’ ’ and as a result thereof said plaintiff sustained severe and permanent injuries. The answer denied all allegations of negligence or carelessness in the operation of the automobile by defendant, did not raise the issue of contributory negligence, but alleged that the accident in question was unavoidable. The jury brought in its verdict in favor of defendant, and this appeal is prosecuted from the judgment which was thereafter entered pursuant to such verdict.

The record herein reveals the following undisputed facts; On April 24, 1941, the day of the accident, the Langham family, consisting of the parents, the injured child and his older brother, aged four years, had been residing for about one year at 11309 Killion Place, North Hollywood, which premises adjoined on the west the private driveway where the accident occurred. The Schultz family, consisting of the parents and two children, aged nine and six years, respectively, resided next door to the Langhams at 11303 Killion Place, which adjoined the driveway on the east. The Schultz home was on the rear of the lot and in front of both houses were lawns surrounded by picket fences on the outside, and separated only by the private driveway. This driveway was 14 feet 11 inches in width, to the right of which a large pepper tree was growing, and north of the tree close to the driveway was a small bush. The Schultz and Langham children and other children of the neighborhood were in the habit of playing on the Schultz and Langham lawns practically every day when the weather permitted.

Respondent Norlander had known Mrs. Schultz for many years and was a frequent visitor at the Schultz home during the four and a half months they had resided at the Killion Place address, calling there once or twice a week during the daytime, as he was working nights. Respondent testified that prior to the day in question he had noticed both the Schultz and Lang-ham children playing on the lawn in front of their homes; that he usually drove into the driveway and parked his car two feet off the driveway with the right wheels two feet over on the lawn, and on April 24th he parked his automobile “between the pepper tree and the bush, with the right front fender nearly touching the bush, ’ ’ and that when he drove in on that day he noticed the Schultz children in the yard but did not notice the