Hilyar v. Union Ice Co.

• Decision Date: 29 July 1955
• Court: California Supreme Court
• Parties: Raymond E. HILYAR, a minor, by Leslie Earl Hilyar, his guardian ad litem, Plaintiff and Appellant, v. UNION ICE COMPANY, a corporation, and Charles Irwin Ingram, sued as Charles Irwin Ingerman, Defendants and Respondents. L. A. 23223

Page 21

286 P.2d 21

45 Cal.2d 30

Raymond E. HILYAR, a minor, by Leslie Earl Hilyar, his guardian ad litem, Plaintiff and Appellant, v. UNION ICE COMPANY, a corporation, and Charles Irwin Ingram, sued as Charles Irwin Ingerman, Defendants and Respondents.

L. A. 23223.

Supreme Court of California

July 29, 1955.

Elconin & Elconin, Benjamin Elconin, Hirson & Horn and Theodore A. Horn, Los Angeles, for appellant.

George P. Kinkle and George P Kinkle, Jr., Los Angeles, for respondent Union Ice Co.

Crider, Tilson & Ruppe , Los Angeles, and E. Spurgeon Rothrock, Corona, for respondent Ingram.

CARTER, Justice.

This is an appeal by plaintiff from judgments of nonsuit entered in favor of defendants Charles Irwin Ingram (sued as Charles Irwin Ingerman) and Union Ice Company for damages for personal injuries.

Plaintiff, a five and a half year old boy, was run over, or hit, and seriously and permanently injured by an ice truck driven by defendant Ingram. The only question involved is whether there was sufficient evidence of negligence on the part of Ingram to permit the case to go to the jury. A subsidiary question is whether there was sufficient evidence of an agency relationship between defendant Ingram and defendant Ice Company to submit that issue to the jury.

There were no eyewitnesses to the accident which occurred in the early afternoon, around two o'clock and the evidence is almost without conflict. The record shows that plaintiff, and his family, lived in a trailer camp or park which was privately owned. The trailer camp contains two north-south roads ('C' and 'B') about 20 or 22 feet wide which are unpaved and full of chuck-holes and bumps and ruts. These roads have neither curbs, nor sidewalks and are used by both pedestrian and vehicle traffic. On either side of each street are the trailer houses. There is a road running east and west at the southern end of the camp. The Hilyar trailer was located on the east side of 'C' street, the small north-south road on the west side of the camp. The only bath and toilet house in the camp is located in the southwest corner of 'C' street at its most northerly end. Plaintiff's mother was visiting in a trailer located on the westerly side of 'B' street and had permitted plaintiff to go to the bathhouse alone as he had often done before if, as she testified, he would come right back. Defendant Ingram, driving a truck bearing the name 'Union Ice' in large block letters on both its doors, was delivering ice to the trailer on the southwest corner of 'C' street; this trailer was directly opposite that in which the Hilyars lived. Driver Ingram testified that after he had delivered the ice, he walked around from the right side of his truck to the back; that there were children playing around it and that he warned them to get away from the truck; that he then got back 'up' on the truck and started the motor; that he 'glanced in my mirrors and headed south for a few feet and made my left-hand turn east.' This testimony shows that he was driving south, that he turned to the left into the east-west street and proceeded in an easterly direction. He testified that he looked through the mirrors when he started up; that he looked out of the truck to see if there were any children to the right or left of the truck; that he was driving in second gear at from three to four miles an hour; that he did not sound his horn. He testified that he drove along the east-west street until he came to 'B' street, a distance of about 65 feet, and that he again made a left-hand turn in order to proceed in a northerly direction on 'B' street. The record shows that as he made the turn on to 'B' street, he did not sound his horn, nor did he look to see if there were any children on the right, or around the truck and he didn't see any children; that as he was about 20 feet from the corner (where he made the turn) the first he knew that anything unusual had happened was when he heard 'some kind of noise in the back' and a little boy (not the injured child) 'hollered' at him that something had happened 'back there'; that he jumped out of the left, or driver's, seat of the truck and started down toward where the injured child was lying calling for help. The injured child was lying on the road in a prone position about 20 feet from the corner and approximately 2 feet from a picket fence on the easterly side of the street. The record shows that right after the accident defendant Ingram kept yelling 'My God! My God! I hit him.' Mrs. Hilyar testified that plaintiff, immediately after the accident, said 'I was walking and the truck hit met'; that the accident occurred 'not more than ten minutes' after the child had left for the bathroom. The child failed to qualify as a witness and by stipulation a statement made by him to police officers not long after the accident was admitted in evidence. The admitted portion of the statement consisted of the following: 'Stated he was walking alongside an ice truck and the truck turned a corner knocking him to the ground and ran over his back. Stated he was also knocked into the fence at his right side. Victim. * * *'

The record shows that defendant Ingram had delivered ice to the trailer court for approximately three years; that he knew children played in the area. It is also shown that the truck was a high-bed model with solid sides and a closed cab some distance from the ground. There were running boards underneath both doors. The over-all length was approximately fifteen feet.

Bearing in mind that this is an appeal from judgments of nonsuit and the rule that '* * * a nonsuit may be granted only when, disregarding conflicting evidence, giving to plaintiff's evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence favorable to plaintiff's case, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff', Dunn v. Pacific Gas & Electric Co., 43 Cal.2d 265, 268, 272 P.2d 745, 746; Palmquist v. Mercer, 43 Cal.2d 92, 95, 272 P.2d 26; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 282 P.2d 12, we must look at plaintiff's evidence and the inferences to be drawn therefrom in order to determine whether it can be said as a matter of law that there is no evidence of negligence on the part of defendant Ingram.

Ingram was aware that children played in the area of the streets of the trailer camp; he was aware that there were children around his truck when he started to drive from 'C' to 'B' street; he admitted he had not sounded his horn; that he did not look for children on the right of the truck, nor around it. From the pictures of the truck in evidence, it could have been logically inferred that because of its height and the distance of the cab windows from the road, that a small child could have been directly in front of the cab, or at either side, without being seen by the driver unless he were keeping a close watch for children. The only direct evidence of care exercised by the driver is his testimony that he looked in his rear-view mirrors for children when he first started up. There is no evidence that after starting he looked out the side windows, or the front windshield. From this the trier of fact could have determined that when looking through the mirrors, he might have missed seeing a small child directly in front of him. There is evidence that at no time did defendant Ingram sound his horn to warn children away from the moving vehicle. From the child's statement that the truck hit him and ran over his back, it could have been reasonably inferred that he was either in front of the truck as it made the turn, or slightly to its left. From defendant Ingram's testimony that he did not see the child, it could have been inferred that he did not see the child because he was not exercising the care commensurate with the danger to be avoided in that he knew small children played in the area and knew, or should have known, that children are unpredictable, Shannon v. Central-Gaither Union School Dist., 133 Cal.App. 124, 23 P.2d 769.

The police officer, Thomas, testified that in Ingram's signed statement to him concerning the accident, he had stated that he was driving between four and five miles an hour. The jury may very well have believed this statement concerning the speed of the vehicle and have concluded that such speed was not the exercise of due care under all the circumstances.

All persons are required to use ordinary care to prevent others being injured as the result of their conduct; ordinary care is that degree of care which people of ordinarily prudent behavior can be reasonably expected to exercise under the circumstances of a given case. In other words, the care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated, Crowe v. McBride, 25 Cal.2d 318, 321, 153 P.2d 727; Hatzakorzian v. Rucker-Fuller Desk Co., 197 Cal. 82, 98, 239 P. 709, 41 A.L.R. 1027; Warner v. Santa Catalina Island Co., supra, 44 Cal.2d 310, 282 P.2d 12; Jensen v. Minard, 44 Cal.2d 325, 282 P.2d 7.

In Conroy v. Perez, 64 Cal.App.2d 217, 224, 148 P.2d 680, 684, it was held that 'The presence of children is in itself a warning requiring the exercise of care for their safety. Seperman v. Lyon Fire Proof Storge Co., 97 Cal.App. 654, 275 P. 980. Moreover if the evidence shows that a driver has knowledge of the presence of children he may be held to have been responsible although it appears that he did not see the injured child in time to prevent the injury. See 2 Cal.Jur. Ten Yr. Supp., p. 454. This is especially true where the injury occurs in or about the child's home. Cambou v. Marty, 98 Cal.App. 598, 277 P. 365, 367.' There can be no question but that here the driver of the ice truck knew that children were playing in the area. He, himself, testified that he had warned...