Kading v. Willis
Decision Date | 15 August 1955 |
Citation | 286 P.2d 861,135 Cal.App.2d 82 |
Court | California Court of Appeals |
Parties | Richard Clarence KADING, also known as Richard Clarence Williams, a minor, by his guardian ad litem, Charlotte Lorena Kading, et al., Plaintiffs, Richard Clarence Kading, also known as Richard Clarence Williams, a minor, by his guardian ad litem, Charlotte Lorena Kading, Appellant, v. Howard R. WILLIS et al., Defendants, Sparkletts Drinking Water Corporation, a California corporation, Defendant and Respondent. Civ. 20783. |
Cecil W. Collins, Los Angeles, and Gordon B. Friesen, Beverly Hills, for appellant.
Schell, Delamer & Loring, Los Angeles, for respondent.
Appeal from judgment for defendant entered upon verdict of jury. Plaintiff Richard Clarence Kading (commonly known as Dickie) sues through his guardian ad litem for damages for personal injuries received when he, aged five and a half years, was run over by a delivery truck of defendant Sparkletts Drinking Water Corporation which was being operated by its servant Howard R. Willis. The cause was dismissed as to Willis, who had been named as a defendant, and went to trial upon issues raised by the amended complaint and defendant Sparkletts' answer to same.
Appellant argues first that the evidence is insufficient to support the verdict. In examining this point we must follow the familiar rule that all evidence favorable to respondent and all reasonable inferences tending to support the verdict must be accepted as established. In re Guardianship of Kentera, 41 Cal.2d 639, 645, 262 P.2d 317; Marino v. Valenti, 118 Cal.App.2d 830, 840, 259 P.2d 84. Thus viewed the evidence reveals that Willis on the day of the accident, August 1, 1952, was employed by Sparkletts and engaged in delivering bottled water for it; he stopped at the home of the parents of plaintiff at about the noon hour and there made a delivery; when he went into the house some four to six or seven children followed him in, drank water, went out with him and then got on the truck while he was putting a bottle in place. The group included plaintiff Dickie (five and a half years of age), his brother David (eight years old), friend Jerry Jancarik (eight years old), and several other boys of similar age. The Kading residence is on the east side of Glen Iris Street, which runs north and south. The truck was at the east curb and headed north when in front of the Kading home. When Willis saw the boys on the truck they were standing on the running board looking in the window; he told them to get off the truck and back on the sidewalk, that he would see them again in two weeks; they reluctantly obeyed and got onto the sidewalk, where Willis saw them as he drove away. He went up the street to the Brown home, some 400 to 500 feet north of Kading's; it is situated on the west side of the street; he crossed the center line, parked at the left or west curb, headed north, and made a delivery at the Brown house. When he went in he saw no children around, and when he came out some 5 to 10 minutes later, he saw none; there were none on the sidewalk or at the curb. He entered the truck on the left side, looked in the mirror on the right side, saw no traffic and no boys. That mirror was so installed and adjusted that it would show traffic and the water bottles on the truck, and out about 4 to 5 feet beyond the bottles; but it did not reveal the running board along the side, for it was below the bottles. The mirror could be so adjusted as to show the running board but that would cut out the view of traffic in the street. Willis therefore had no way of knowing whether a child rode on the running board from Kading's to Brown's, or whether one was still there when he stopped for the Brown delivery, but he was sure that all of them got off the truck and onto the sidewalk before he left Kading's. And, as above stated, he saw none of them near the Brown house or near his truck parked in front of it, not until after the accident. The truck is so constructed that the driver cannot see through the rear window; from his seat the driver could not see the running board; he could have stuck his head out the right door to look down and around; but, having nothing to put him on notice of proximity of children, he started the truck in low gear, going north at 2 to 3 miles an hour and toward the center of the street; before he got there or shifted from low gear he heard a scream and stopped, having gone not over 15 to 20 feet. He left the truck, which was just across the center line of the street, and saw Dickie lying about 10 feet behind the vehicle; he was complaining about his stomach and apparently had been run over by the truck receiving an injury to the pelvis. Willis carried him to the parking. When Dickie was seen lying in the street his brother David was with him, but Willis did not know where the boy had come from, or when, and he saw no other boys at that time. It does not affirmatively appear, except perhaps circumstantially, whether Dickie was on the running board and fell off, or was in the street and was run into by the side of the truck, or himself ran or jumped into or on it. But the jury could have found from the circumstantial evidence that the boy was on the running board and fell off when the truck started.
Defendant tried the case upon the theory that Dickie was on the truck and was a trespasser. Plaintiff's counsel apparently took the position, which they now urge, that he was not a trespasser because he was not on the truck and that the driver Willis failed to use ordinary care, as he was bound to do, to discover Dickie's presence close to the truck and to protect him from injury; alternatively, that even if the boy was upon the truck the driver was upon notice of that possibility and obligated to use reasonable care to ascertain whether such was the fact and if he found the boy there was required to use ordinary care to inflict no injury upon him.
The rule now generally accepted in this state and elsewhere is that the operator of a motor vehicle who is or should be cognizant of the proximity of children must exercise ordinary care to discover their presence upon or near his vehicle and upon such discovery to use ordinary care to avoid inflicting injury upon them; and this rule applies regardless of the infant's status as trespasser, licensee or invitee. Conroy v. Perez, 64 Cal.App.2d 217, 224, 148 P.2d 680, 684. To the same effect are Hilyar v. Union Ice Company, 45 Cal.2d 30, 286 P.2d 21; Frederiksen v. Costner, 99 Cal.App.2d 453, 456, 221 P.2d 1008; Freeland v. Jewel Tea Co., 118 Cal.App.2d 764, 768-769, 258 P.2d 1032; Marino v. Valenti, 118 Cal.App.2d 830, 842, 259 P.2d 84; Gorzeman v. Artz, 13 Cal.App.2d 660, 662, 57 P.2d 550; Parra v. Cleaver, 110 Cal.App. 168, 171, 294 [135 Cal.App.2d 88] P. 6; 30 A.L.R.2d 5, 102-105, annotation. The following cases are not opposed to this rule, although some language used therein, applicable to the factual situation under consideration, may so indicate at first reading: 'Wilson v. City of Long Beach, 71 Cal.App.2d 235, 240-243, 162 P.2d 658, 163 P.2d 501; Allred v. Pioneer Truck Co., 179 Cal. 315, 176 P. 455; Bakos v. Shell Company of California, 115 Cal.App. 142, 144, 300 P. 982; Johnston v. Associated Terminals Co., 13 Cal.App.2d 121, 122, 56 P.2d 259; Norland v. Gould, 200 Cal. 706, 709, 254 P. 560. Ordinarily the question of whether a driver should be alerted to the necessity of looking for the presence of children is one of fact for the jury to solve, as is also the question of whether that duty, once it arises, has been properly performed. This was the holding in Frederiksen v. Costner, supra, 99 Cal.App.2d 453, at page 458, 221 P.2d 1008, and Freeland v. Jewel Tea Co., supra, 118 Cal.App.2d 764, at page 769, 258 P.2d 1032. In our judgment respondent's cited cases of Coffey v. Oscar Mayer & Co., 252 Wis. 473, 32 N.W.2d 235, 3 A.L.R.2d 753; Ostrander v. Armour & Co., 176 App.Div. 152, 161 N.Y.S. 961; Abbott v. Railway Express Agency, 4 Cir., 108 F.2d 671, which hold as matter of law that the driver's conduct was not negligent in circumstances resembling those at bar, cannot be held controlling in the face of the California rulings we have cited. The facts at bar, above summarized, presented a jury question which was decided in favor of defendant, and it cannot be said as a matter of law that the verdict was without support in the evidence.
Appellant's counsel argue in this connection that there is no evidence that Dickie was on the truck; that it is presumed he was not there; that the truck was on the wrong side of the street and that, as it struck the boy on that part of the street, the driving and parking contrary to Vehicle Code section 525 and Los Angeles Municipal Code section 80.49 was negligence per se which constituted as matter of law the proximate cause of the accident. Section 525 requires vehicles to be driven upon the right half of the roadway and section 80.49 requires parked vehicles to be headed in the direction of traffic with the right wheels within 18 inches of the curb. (No...
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