Anderson v. Katz

SHOEMAKER, J. Plaintiffs Nola Anderson and Stanley Orme brought this action to recover damages for the wrongful death of their father, Fred Orme. The complaint alleged that defendant William Katz, a minor 19 years of age, had driven an automobile so negligently as to cause it to strike and kill plaintiffs’ deceased. It was further alleged that defendants Sam and Tillie Katz, the parents of the minor defendant, had permitted him to use their automobile and had signed his application for issuance of a California operator’s license. Defendants answered, denying negligence and raising the defense of contributory negligence on the part of plaintiffs’ deceased. After a trial by jury, verdict and judgment were for defendants. Plaintiffs appeal from the judgment and from the order denying their motion for a new trial. The latter order is nonappealable. (Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608 [248 P.2d 910]; Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156 [338 P.2d 907].)

The evidence most favorable to the judgment reveals that on September 12, 1958, at approximately 6:45 p.m., Wil[337]Ham Katz was driving his parents’ 1948 Ford sedan in a westerly direction down Kirkham Street. He had turned onto it from 41st Avenue and was intending to drive west on Kirkham to La Playa, and then to the home of his companion, Jean Maisin. Kirkham Street, between 41st Avenue and La Playa, is a straight, wide street which slopes slightly downward and provides an unobstructed view ahead. On the evening in question, however, the defendant, upon turning from 41st into Kirkham, found that the sun was shining directly onto his windshield. Although there was evidence that the defendant’s windshield was somewhat dirty, he denied that he had had any difficulty seeing through it until he turned into Kirkham and encountered the glare of the sun. He stated that he and his companion had both commented on the brightness of the sun, and that he had found it necessary to pull down his sun visor. Upon taking this precaution, he continued to experience some difficulty in seeing, but not enough to prevent his seeing well enough to proceed.

In traversing the 7 blocks between 41st and 48th Avenues, the defendant testified that he slowed to 10 or 15 miles per hour at intersections, and accelerated to 20 or 25 miles per hour between intersections. Upon approaching the 48th Avenue intersection, the defendant’s visibility was the same as it had been for the preceding 7 blocks. He accordingly slowed to 10 or 15 miles per hour by means of shifting into second gear; he could see directly ahead of him the embankment at La Playa, and then looked to the right and to the left for approaching traffic and for pedestrians. Upon ascertaining that the way was clear, he drove through the intersection and began accelerating to 20 or 25 miles per hour. The defendant testified that the street dipped slightly downward just west of the 48th Avenue intersection and that it suddenly became much more difficult to see. At a point variously estimated as from 20 to 56 feet west of the 48th Avenue intersection, the defendant heard a thud and looked to the right of his car. He saw a man come up over the hood and roll off to the right side of the car. The defendant then turned his car to the left and brought it to a stop east of the La Playa intersection. The defendant estimated that he was traveling at approximately 20 or 25 miles per hour at the moment of the impact. Both he and his companion, Jean Maisin, testified that they never saw the pedestrian prior to striking him. At the moment of impact, the deceased was approximately 13 to 16 feet from the north curbline. He was struck by the front end of