Galbraith v. Thompson
Decision Date | 11 January 1952 |
Citation | 239 P.2d 468,108 Cal.App.2d 617 |
Court | California Court of Appeals |
Parties | GALBRAITH v. THOMPSON. Civ. 14813. |
Healy & Walcom, San Francisco, for appellant.
John F. Moran, San Francisco, James A. Himmel, San Francisco, of counsel, for respondent.
Defendant Thompson appeals from a judgment on a verdict of $7,300 in a wrongful death case. Respondent Floreine Galbraith brought the suit for damages for the death of her son Dennis Hermes of whom she had custody under a divorce decree. He was killed in a collision with appellant's car when he ran into the street in pursuit of a ball. Over and above a general denial defendant pleaded contributory negligence both of the child and the plaintiff mother and unavoidable accident. Defendant's motion for a new trial was denied by failure of the court to act on it.
Appellant primarily relies on insufficiency of the evidence, but also states: 'the only issue (except for misconduct of counsel hereinafter cited) before this court is whether it was improper to submit the last clear chance doctrine to the jury.' Appellant's position seems to be that the only theory under which he could possibly be held liable was the last clear chance doctrine, that this was also the theory on which the case was tried, and that there was no evidence supporting the application of said doctrine so that the giving of an instruction on it was error; but respondent argues that no negligence of mother or child necessarily contributed to the proximate cause of the injury so that, although there was a possible evidentiary basis for application of the last clear chance theory, the verdict could also be upheld on the theory of simple negligence.
The accident happened on August 4, 1948 about 6:40 in the evening. The weather was fair and it was still light. At that time Dennis was less than seven years old. He and his mother lived with her parents, Mr. and Mrs. Greenlee, at 3651 22nd Street, just east of Sanchez street. His mother had gone visiting and had left him in the care of his grandmother. After he had had dinner with her at 5:30 he left alone saying he was going to play in the next block. The block in which they lived had a very steep grade and therefore the children played in the next block which was flat. The apartment house in which they lived had no back yard. He was a bright little boy who for two years had been accustomed to go to school by himself. That evening he went to play with Beatrice Dozier, who lived in the next block and who then was not yet eleven. She testified that they went to a garage in the middle of the block on the north side to play ball. Some little children on top of the garage would throw Beatrice's tennis ball down. Beatrice and Dennis on the sidewalk in front would try to catch it and throw it back up. They had played so far half an hour when they missed a ball, which then bounced from the sidewalk into the street. They turned to look for it. After Dennis had hesitated, looking where the ball was, he started to run after it. Beatrice then saw a car, seven houses down from where they were. The houses had 25 foot frontage. She yelled for Dennis to come back. He was running out, not fast, deviating somewhat in the direction of Noe street. She saw the car again at 3756 22nd street. She was then starting to run after Dennis and she barely missed grabbing his T shirt, when the car hit him and she jumped back. She saw the front part of the car hit him; probably the right front fender. The witness Irene Kane was slowly driving east in the block in question when she saw a ball bounce into the street, a child on the sidewalk running at an angle, southwest, after it, and a car coming up the street at least three car lengths away from the ball. There were very heavy black skid marks. The skid of each wheel measured averaged 34 feet, 6 inches. Defendant stated to the investigating officer that he was going approximately 25 miles an hour when the boy ran into the side of his car and the impact occurred.
Appellant, who was called by the plaintiff under Code Civ.Proc. § 2055, who testified also in his own behalf, and had his deposition read into evidence, testified that after driving north on Sanchez he made a left turn into 22nd street. At the north side of 22nd several cars were parked. He was looking west, knowing that many small children lived in the neighborhood and were at times playing in that street. He saw a ball bouncing into the street and immediately threw on his brakes. He looked to the right because he expected a child to follow it. He testified that the ball was 18 to 20 feet away when he first saw it, but in his deposition he said he imagined it was then 5 or 6 feet to the front and 3 feet to the right side of his car. He did not sound his horn; he was driving fairly close to the center of the street. After one big bounce the ball hit his radiator. A flash after the ball hit the radiator he saw the top of the boy's head out of the window of the right front door 4 or 5 feet away, just opposite the door, coming towards it. From the time he first put on his brakes until he came to a stop was about 18 or 20 feet. Some part of the right side, probably the right front door hit the boy. Thompson stopped and got out of the car because he thought he had hit him but he did not feel the impact. The child had run out between parked cars jammed close together. The distance of the cars he came out between was only 2 or 3 feet. But he had originally drawn the cars 12 feet apart on the map and both Beatrice and the police officers testified that they were at opposite sides of the driveway of the garage some 10 to 12 feet apart. Defendant testified that the skid marks were 17 to 18 feet long behind the car (but they were measured at 34 feet, 6 inches). His car was 17 feet long. With respect to the speed with which he had been driving he testified that he told the police officer that he was going 20-25 miles. At the time of the impact it was only between 10 and 25. However Officer Conroy testified that Thompson told him he was going approximately 25 at the time of the impact. The officer gave him a ticket for speeding but it was dismissed in court.
It would seem that the above evidence was sufficient to support a verdict on the ground of simple negligence. On the basis of the testimony of Beatrice Dozier and Irene Kane the jury could conclude that when appellant saw the ball it was further away than he testified, that he didn't sound his horn and that he was going too fast, his speed being still approximately 25 miles after he had braked and was skidding. Whether the boy of not yet seven was negligent in running after the ball without looking was a matter for the jury. 2 Cal.Jur.Supp. 442; 19 Cal.Jur. 605; Graham v....
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