Gill v. Clark

BARNARD, P. J. The minor plaintiff, then 3 years old, was injured in an accident at 3:30 p. m. on February 3, 1950. The accident occurred on a driveway running through a lumberyard owned by Rex E. Gill, the father of the plaintiff. This driveway ran the entire length of the lumberyard prem[560]ises in a north and south direction, was some 30 or 35 feet wide, and was used by customers who could enter it either from the north or the south. On the west side of the driveway there was a lumber shed 108 feet long and an office.

The defendant Krier was engaged in construction work nearby and had made numerous business visits to this lumberyard. On this occasion he came to talk business with Mr. Gill, entering at the south end of the driveway. There was a lumber truck parked on the east side of the driveway near a point where Mr. Gill was working at a saw. Krier parked his car west of the lumber truck and went over to talk to Mr. Gill. About that time a man named Springer drove a pickup truck in from the north, parked a short distance north of the Krier car, and went over to the lumber shed. About the same time a Mrs. Lee drove in from the north and parked a few feet behind and to one side of the Springer truck. She remained in her car, waiting for a chance to speak to Mr. Gill.

The defendant Krier talked with Gill near the saw for a few minutes, during which Gill was faced toward Krier’s ear. They then walked toward Krier’s car, conversing as they walked. As they approached the Krier car they separated, Krier walking around the rear of his car to enter it on the left side, and Mr. Gill passing by the right front corner of Krier’s car en route to the office to wait on Springer. Krier entered his car through the left door, started the motor, put the car in low gear and moved forward at a slow speed. He had gone no more than 2 to 4 feet when he felt an impact. He put the car in reverse and backed away a few feet, and at the same time Mr. Gill came running. Mr. Gill testified that he looked and saw his son on the ground, and not standing, at or near the right front wheel of the Krier car as it moved forward slowly. The boy received serious and permanent injuries.

It appears without conflict that Krier on his many previous visits had never seen any children loitering or playing in or near this driveway, and that Mr. Gill had not given him any warning or mentioned the presence of any children prior to the accident. Mr. Gill testified that he- had last noticed the boy about 8 or 10 minutes before Krier arrived at the lumberyard, and that as he looked in the direction of the Krier car he had not seen the boy. Mrs. Lee testified that from the position in which she was parked she could see clearly to the south in the direction of the Krier car, that the right front half of the Krier ear was within her line of vision, and that she did