McCallum v. Howe

DORAN, J. The complaint alleges that plaintiffs, Patricia, aged 8, and Reianne, aged 7, suffered personal injuries as a result of defendant’s negligent operation of an automobile on October 31, 1949, at or near the intersection of Avenue 64 and Crescent Street in Los Angeles. A jury rendered a verdict for the defendant, and plaintiffs’ appeal is from the judgment entered thereon.

At the time of the accident, about 5:35 p. m. it was dark, and the respondent’s headlights were lighted and set on “low beam.” The respondent 'testified that “he neither saw [794]appellants nor heard anything at the time of the collision; that the first indication he had of an accident was: ‘. my wife says, “I think we have hit something. Stop.” and I immediately hit my brakes and stopped. ’ ” Respondent then found the two little girls lying on the pavement some 6 to 8 feet to the rear of the car and about 10 to 12 inches from the east curb of Avenue 64. The only eyewitness testified that the girls were running or skipping diagonally across the avenue, not at a crosswalk, holding hands, and with their backs half turned to respondent’s ear. Respondent’s car knocked the girls down but did not run over them.

It is appellants’ contention that “respondent was negligent as a matter of law,” in that the automobile was not equipped with headlights rendering persons visible for a distance of at least 100 feet ahead, as required by sections 618 and 648(d) of the Vehicle Code. This is predicated upon respondent’s testimony that the headlights shone only 12 to 15 feet ahead. The respondent also testified that the headlights were set on low beam; that respondent was able to see a parked ear at a considerable distance; that the lights of approaching ears blinded respondent “to a certain extent” but that at the time the driver was not conscious of any interference with vision from such lights.

A survey of the record indicates that appellants’ contention that respondent was guilty of negligence per se is based upon a partial and partisan interpretation of the evidence. As pointed out in respondent’s brief it is not established that there was a violation of the regulation in question, and even if such violation were present, “lack of adequate or lawful lights on respondent’s vehicle could not have been the proximate cause of appellants’ injuries, for there is no evidence that they were within the beam of the lights on respondent’s vehicle, or ever were in front of his vehicle before they were hit.”