Opinion
Civ. No. 4376.
November 24, 1922.
APPEAL from a judgment of the Superior Court of Alameda County. Dudley Kinsell, Judge. Affirmed.
The facts are stated in the opinion of the court.
M. J. Rutherford for Appellants.
Frank M. Carr and Stanley R. Sterne for Respondent.
Plaintiffs appeal from a judgment in favor of defendant in an action for damages for the death of plaintiffs' son, caused by having been struck by an automobile driven by defendant on the public highway. The appeal is taken under the provisions of section 953a of the Code of Civil Procedure.
The grounds of appeal, as stated by appellants in their brief, are that the respondent was guilty of negligence because at the time of the accident he was operating his automobile in the vicinity of a schoolhouse at such a rate of speed that he could not stop the same in less than thirty feet; that he failed to give a warning of his approaching machine, though the street was banked with trees and poles; that he was driving the machine without watching the road over which he was passing. All the grounds urged by appellants are mere matters of fact which the trial court was called to determine, and all of which were found adversely to appellants. [1] It is not argued that respondent was guilty of negligence per se or that he violated any statute relating to the manner of operation of the automobile upon the public highway other than the provisions of section 22, subdivision a, of the Motor Vehicle Act (Stats. 1919, p. 220), which requires that one operating a motor vehicle on the public highways shall do so in a careful and prudent manner and at such a rate of speed as shall not endanger the life or limb of another. When reliance is placed on this provision of the statute, it is necessary to prove that the vehicle was not operated in a careful or prudent manner or that it was operated at an unreasonable rate of speed. The trial court found that the respondent was operating his car in a careful and prudent manner and that the accident was not the result of any carelessness or negligence on his part, but that it resulted from the fact that the little boy suddenly and without warning jumped from behind a tree and ran directly in front of the automobile. There is evidence to support all the findings of the trial court. Such being the case the judgment should not be disturbed.
Judgment affirmed.
Sturtevant, J., and Langdon, P. J., concurred.