Echols v. Fabyunkey

SCHOTTKY, J. Plaintiffs commenced an action for damages alleging that the death of their son, Thomas Echols, age 2 years, 10 months, was caused by the negligent operation of defendant’s 1948 pickup truck. Defendant filed an answer denying any negligence on his part and also setting up the defense that plaintiffs were negligent in that they failed to exercise due care for the safety of their son and were themselves guilty of negligence and contributory negligence. The action was tried before the court sitting without a jury and the court found that “said accident occurred without negligence on the part of either said decedent or of said defendant and was unavoidable in character.” Judgment was entered in favor of defendant, and plaintiffs made a motion for a new trial which was denied. Plaintiffs have appealed from the judgment and from the order denying that motion' for a new trial. The order denying the motion being nonappealable (Code Civ. Proc., § 963; Pipoly v. Benson, 20 Cal.2d 366,, 369 [125 P.2d 482, 147 A.L.R. 515]), the appeal therefrom must be dismissed.

The only issue involved upon this appeal is the sufficiency of the evidence to support the judgment. Appellants ’ argument may be summarized in their own words as follows:

“. . . it is the contention of plaintiffs that the defendant was negligent as a matter of law in that he utterly failed to keep a proper lookout ahead; that the defendant at the time of and preceding the accident was not exercising that degree of prudence and watchfulness—a proper lookout ahead—that the law requires of him in the operation of a motor vehicle. ’ ’

The accident occurred a little after 5 o ’clock in the afternoon of March 15,1953, on a lightly traveled, unpaved but graveled foothill road, 28 feet 2 inches of flat surface across, with about an 18-foot graveled portion in the center. At the place of impact the generally traveled path followed by vehicle traffic was westerly of the center of the graveled portion so that a vehicle following the more firmly packed down traffic tracks, and going northerly, would have its left wheels 5 or 6 feet [479]from the left edge of the graveled portion. This is known as the Texas Hill Road and runs in a straight northeasterly direction from the point at which respondent entered upon it for over 100 yards to the point of impact and for some distance beyond. Going northerly the road is upgrade to the extent that respondent was proceeding in second gear and at a speed of 15 miles per hour. For at least 100 yards respondent had a clear view of the road and meadow on each side, and he saw three children playing just off the edge of the shoulder of the road on the left (decedent was the fourth child). He traversed this road two or three times a day and often saw children playing in the vicinity of the road near this location.