Freeland v. Jewel Tea Co.
| Decision Date | 29 June 1953 |
| Citation | 118 Cal.App.2d 764,258 P.2d 1032 |
| Court | California Court of Appeals Court of Appeals |
| Parties | FREELAND et ux. v. JEWEL TEA CO. et al. Civ. 19453. |
George A. Kuittinen, Studio City, for appellants.
Cecil L. Lacy, Santa Monica, and Parker, Standbury, Reese & McGee, Los Angeles, for respondents.
Late in the afternoon of January 24, 1951, defendant Besley, driving defendant Jewel Tea Company's truck, was selling its products to customers residing in the thirteen thousandth block of Leflose Avenue in Norwalk. At the north end of this block the street is dead-ended. The truck was parked on the east side of the street facing the dead-end. As a result, defendant Besley had to turn around in the street to make his exit. Because two other cars were parked directly in front of the truck, he backed the truck from its parked position. He then proceeded forward turning left across the street into a driveway on the west side adjacent to plaintiffs' residence. As he was slowly backing the truck out of the driveway, the left rear wheel struck Karen Freeland, the two and a half year old daughter of the plaintiffs, causing her death.
By the instant action for wrongful death, the parents sought damages from the owner of the truck and from the driver.
The jury returned its verdict in favor of plaintiffs. The trial court denied a motion for new trial. From the judgment entered pursuant to the jury's verdict, defendants appeal.
It is here urged that the evidence established without conflict that the child was holding onto the truck at the time of the accident. And, as a result, she was a trespasser toward whom appellants, unaware of her presence, owed no duty of care.
It was established that many children living in this block habitually played in and about this dead-end street.
Defendant Besley testified that usually there were around twenty children playing in the street. On the day in question there were eight to twelve children varying in age from two to ten or twelve years playing in the parking way, around and in his truck. And because he had to back his truck before he could turn it, he cautioned every one of the children on the east side of the street to get on the parking way and off the street before he backed. After backing, he drove ahead and turned almost straight across the street into the driveway heretofore mentioned. He stayed in the driveway 'just long enough to engage the truck in reverse gear and proceed backwards.' Before he backed from the driveway, he checked in the right rear view mirror, also on the left side and stuck his head out the left side of the truck to see that everything was clear. He saw only the children still standing in the group on the east side of the street where he had left them on the parkway.
He did not sound his horn and brought his truck to a stop when he heard someone scream.
There were two eye-witnesses to the accident: Mrs. Foster and Mrs. Dumbleton, neighbors living on the east side of the block in question.
Mrs. Foster testified that she was standing on the lawn in front of her house talking to Mrs. Dumbleton. At that time ten or twelve children were playing in the area between her house and the barricades at the north end of the street. She first noticed Karen playing with her older sister on the lawn in front of their parents' home on the west side of the street. Later, when the truck moved across the street from east to west, the two sisters were following it closely. Karen 'trotted along behind the truck * * * her hands on the bumper, jumping up and down, playing', her feet on the ground. When the truck got into the driveway 'she raised her little hands off and we thought she was going to move to get out of the way, but she didn't fast enough.' The truck paused just long enough to shift gears. It moved backward 'a very few feet'; Mr. Besley 'had to drive a little bit.' As the truck started, the witness screamed. 'The child was hit in the street * * * by the rear end of the truck.'
Mrs. Dumbleton testified that she saw the truck parked on the east side of the street; that when Mr. Besley started the truck, Karen When the truck got into the driveway, 'She was behind it. Not directly behind it. * * * she was quite a little ways from his truck while he was in the driveway--a few feet.
'Q. Yes. Mrs. Dumbleton, I don't want to persuade you to describe anything that isn't clear in your mind, but if you did notice where the little girl was while the truck was in the driveway and before it started to back out, it would be helpful if you would tell us. If you didn't notice, of course, your answer is 'I don't know.' Did you notice where Karen was at that time? A. Well, you have me just a little bit confused, but the only way I can explain it, as he pulled across the street they were still at that time on our side of the street, but as he got across into this driveway they ran across the street.
* * *
This witness also testified that most of the truck was in the driveway before it started to back.
In support of their stand, appellants rely upon the statement of Mrs. Dumbleton that the child grabbed hold...
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