Opinion
Hearing Granted Feb. 27, 1941
Appeal from Superior Court, Los Angeles County; Orlando H. Rhodes, Judge.
Action by Lloyd W. Gates, etc., and others, against Melvin E. McKinnon, to recover damages for personal injuries sustained by the named plaintiff when struck by defendant’s automobile. From a judgment in favor of the plaintiffs, after trial before the court without a jury, the defendant appeals.
Judgment reversed.
COUNSEL
Kenneth J. Murphy, of Los Angeles (Henry E. Kappler, of Los Angeles, of counsel), for appellant.
John L. Flynn and Roger Arnebergh, both of Los Angeles, for respondent.
OPINION
McCOMB, Justice
From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover damages for personal injuries defendant appeals.
Viewing the evidence most favorable to plaintiffs (respondents), the essential facts are:
The following is a picture of the scene of the accident, which is the subject of the present litigation.
July 23, 1939, about 5 p.m., defendant was driving his automobile at a speed of approximately eighteen miles per hour in a northerly direction along Appian Way (which is thirty feet in width) in the city of Santa Monica just south of the point marked "S" in the above picture. There were no cars parked on the east side of Appian Way and defendant was following a car approximately sixty feet in front of him. There were also a number of other cars traveling both north and south on the thoroughfare. On the east side of the street there is a stairway leading from a large group of bungalow courts to the street level, which is concealed on its southerly side by a high hedge. This stairway is indicated by the letter "S" in the above picture.
Immediately preceding the accident plaintiff Lloyd W. Gates, a minor seven years of age, was on a stairway leading down to the roof of the garages bordering the east side of Appian Way, watching some other boys playing ball on the garage roof. Their ball went into the street and said plaintiff was asked to retrieve it. He proceeded down the stairway to the garage roof, then down the stairway indicated by the letter "S" in the above picture, and according to the testimony of the witness Williams, who was in his automobile driving south on Appian Way and was directly opposite the point "S", said plaintiff, while on the third or fourth step appeared to lose his balance and hit the sidewalk. From there on, crawling on his hands and knees, he seemed to shoot like a bullet into the street in front of defendant’s car, where he was hit and injured. At the time the boy came onto the sidewalk defendant’s car was less than ten feet south of the stairway indicated by the letter "S".
The following are excerpts from the testimony of Witness Williams:
The other eye-witness to the accident, Dr. W.F. Jameson, who was driving his car in a southerly direction on Appian Way, and was at the time of the accident on the west side of the street just north of the point "S", corroborated the testimony of the witness Williams. Defendant testified that he did not see said plaintiff until after the boy had hit his car. Plaintiff Lloyd W. Gates testified that he did not remember anything concerning the accident.
This is the sole question presented for our determination:
Was there substantial evidence to sustain the trial court’s finding of fact that negligence of defendant was the proximate cause of the injuries received by plaintiff?
This question must be answered in the negative. Viewing, as we have in stating the facts above, the evidence in the light most favorable to the plaintiff indulging every inference favorable to him, and disregarding all evidence and inferences favorable to defendant, we are of the opinion that the facts fail to disclose any conduct, act, or acts of defendant which would support a finding that he was negligent and that as a result thereof plaintiff was injured.
The present case falls within the statement of the law as found in vol. two, Cal.Jur.Supp. (1935), page 451, section 282, title, Automobiles, reading thus:
"Of course, the driver of a car which has collided with a child is not to be held to have been responsible for the calamity where the evidence shows that he could not have foreseen and prevented the occurrence thereof *** as for example, where it appears that the child was concealed from the view of the driver at the side of the highway or street and without warning ran in front of the oncoming vehicle."
For the foregoing reasons the judgment is reversed.
We concur: MOORE, P.J.; WOOD, J.
"Q. Can you describe how Lloyd Gates was crossing that distance from the curb out to the left front wheel of Mr. McKinnon’s car? A. He was on all fours right on his hands and knees shooting right forward trying to get up. Trying to stop himself I suppose. Q. In other words he was diving out there? A. That’s right. Not diving. Going on all fours. Just pulling himself forward. Q. Crawling would you say? A. Yes, it looked just like crawling."