Hoy v. Tornich

This is an appeal by the defendant from a judgment against him for damages alleged to have been caused by his negligent operation of an automobile. The answer denied that the defendant was negligent and, as a separate defense, alleged that the plaintiff’s injuries were “proximately caused by the negligence of said Hugo Eric Hoy in this, that . . . said Hugo Eric Hoy carelessly and negligently ran directly in front of the said automobile . . . and . . . carelessly and negligently failed and neglected to avoid said accident and said injuries.”

At a point on the highway between Livermore and Altamont, where the ground is level and the road straight, the defendant’s automobile, a five-passenger Briscoe touring car, struck the plaintiff on the right side of the head, causing the injuries of which complaint is made. The paved part of the highway is sixteen feet wide. The defendant was traveling easterly along the south half of the pavement and, immediately before striking the plaintiff, he met and passed a truck going in the opposite direction along the north half of the pavement. The plaintiff, who was then of the age of six years and three weeks, and three other children were walking home from school in a westerly direction along the northerly half of the highway, near the pavement but not upon it. The truck passed the children and the plaintiff thereupon turned to the left, his home being on the south side of the highway. When partly across the pavement he was struck by the defendant’s automobile. The children’s teacher had warned them against walking on the pavement except when it became necessary to cross it.

One of the children, a boy of the age of ten years at the time of the accident, testified: “I was walking on the gravel. All of the four children were walking along there also. . . .

The plaintiff was rendered unconscious by the impact of the fender against the side of his head and remained in that condition for three days. The attending physician testified that in his opinion “there was a severe tearing, or laceration of the brain tissue” and a fracture of the skull and that the injury “is very likely to be permanent.” Another physician, who examined the plaintiff about a week before the trial, which was commenced about eighteen months after the accident, testified that he found marked evidence of inco-ordination, or ataxia; that “arrested mental development . . . would be a natural sequence to an injury which resulted in a laceration of the brain. That kind of condition would be permanent. In a case like this, I do not think you can look for very much improvement. ... In my opinion, this boy will never be able to obtain an education. It is also my opinion that he will either be a ward of the state or else he could do light work, a watchman, for instance, or doing chores around the house or some of those things.” Another physician, who was called as a witness by defendant, testified that he found nothing to indicate a brain injury; that while the plaintiff “might be considered as somewhat retarded, he would not be considered as feeble or demented, and there is no indication that he would not develop mentally”; that he “did not find any evidence of inco-ordination”; that in his opinion the ability of plaintiff “to make his way in the world after he is twenty-one year's of age is that it will be good.” The plaintiff was out of school for about two months after the accident, but he attended school regularly after his return thereto until the time of the trial. His teacher testified 'that he was the brightest pupil in his class prior to the injury; that “he was very quick to grasp his work,” but that “he is not any further advanced today in his studies since coming back after the accident. No progress at all. I have worked with him alone, giving him special help, but

[1] The evidence is clearly sufficient to support the verdict and judgment. The defendant testified that he was looking straight ahead prior to the accident, except when he looked to the left as he approached the truck. Therefore, he must have seen the children both before and after the truck had passed them, and since both machines were traveling much faster than the children, the period of time during which the truck obstructed his view of them must have been very brief. The divergence of the lateral boundary lines of the field of vision is such that if the defendant was looking directly ahead along the straight and narrow road he must have seen the children walking along the strip of gravel adjacent to the pavement. The testimony is to the effect that the plaintiff did not run across the pavement. “He was walking. I could not say how fast. Not too fast and not too slow, just about right. ’ ’ Taking into consideration the slowness of the plaintiff’s movement across the pavement as compared with the speed of the truck, it is clear that the truck had gone forward a sufficient distance to afford the defendant an unobstructed view of the plaintiff before the latter arrived at the point where he was struck, that point being at least nine or ten feet from the place where he turned to cross the pavement. Viewed in the light of common experience, the defendant’s own testimony shows that he was negligent. This is not a case of a child darting suddenly in front of a moving vehicle from a hidden place, but of running into a child on an open highway. If the plaintiff were of mature judgment and mental capacity it would be inferred from the uncontradicted evidence, introduced by the plaintiff, that he was guilty of contributory negligence in attempting to cross the pavement without looking for approaching vehicles. Respondent contends that the defendant did not plead contributory negligence as a defense. [2] But where the evidence introduced by the plaintiff shows that he has been guilty of contributory negligence, “the defense may be availed of, even though not set up by defendant.” (19 Cal. Jur. 681.) [3] If it be conceded that the plaintiff was negligent, still it appears that the defendant had a clear chance to avoid the accident. The defendant testified that

[4] The instructions are lengthy and contain many repetitions and a number of errors, several of them favorable to the defendant. Appellant contends that certain instructions given at the plaintiff’s request are prejudicially erroneous. One of them states that the plaintiff “had a right to assume that all other persons using the highway . . . would exercise ordinary care to prevent injury to others.” The objection is that one who is himself negligent is not entitled to so assume. (19 Cal. Jur. 596; Carroll v. Central Counties Gas Co., 70 Cal. App. 303 [ 240 Pac. 53 ]. At defendant’s request the court instructed the jury, without qualification, that the defendant “had a right to assume that persons upon the highway would exercise ordinary care and that they would not negligently expose themselves to danger, and that they would exercise ordinary care to ascertain the approach of motor vehicles, and before you hold that the defendant was negligent in this case, you must take into consideration these assumptions which defendant had a right to rely on.” In other instructions the court stated that the plaintiff could not recover if both parties were negligent, or if he “heedlessly ran in front of the automobile”; that “even though plaintiff in this case was a minor, he cannot hold the defendant responsible for any result to which plaintiff ’s carelessness contributed”; and that it was the duty of the plaintiff to look in both directions for approaching machines. The instructions so given at defendant’s request must be presumed to have removed any prejudicial effect of the instruction of which complaint is made. Another of such instructions reads as follows:

“If you find from the evidence that the child was guilty of negligence in placing himself on the road, or in the path of the approaching automobile, but you further find that

[5] Appellant contends that the uncontradicted evidence shows that he did not see the plaintiff until the very moment of the accident and that therefore the doctrine of the last clear chance is inapplicable. In the discussion of a similar contention, in Wahlgren v. Market Street Ry. Co., 132 Cal. 656 , 665 [ 62 Pac. 308 , 310], it is said: “We think counsel had a right to argue to the jury that the employees were interested witnesses, and though they both testified that they did not see plaintiff before her injury, yet, there being no obstruction to the view, the conductor must have seen her from where he was at the switch before the car passed him, if'he was looking for approaching pedestrians, as his testimony would seem to imply.” If the defendant in this case was looking straight ahead, as he testified that he was, he must have seen the plaintiff. The instruction omits the qualification that the plaintiff must have been in a position of danger from which he could not escape by the exercise of ordinary care. (Darling v. Pacific Electric Ry., 197 Cal. 702 [ 242 Pac. 703 , 706].) The doctrine applies equally if the plaintiff be wholly unaware of the danger and for that reason unable to escape it. (Darling v. Pacific Electric Ry., supra; Palmer v. Tschudy, 191 Cal. 696 , 700 [ 218 Pac. 36 ].) The only reasonable inference from the evidence is that the plaintiff was wholly unaware of the danger and that it was apparent to the defendant that such was the fact. The defect in the instruction, therefore, cannot be considered prejudicial.

At the plaintiff’s request, the court instructed the jury that it was incumbent upon him to exercise “the care and prudence applying to children of the same age of plaintiff”;

“ One element of damage which you may consider, if your verdict is for the plaintiff, is the mental suffering and humiliation, if any, sustained, or with reasonable certainty likely to be sustained in the future by the plaintiff as a result of the injury suffered by him, and in this connection if you find for the plaintiff, and believe that he has suffered as a result of the alleged injury, mental suffering, humiliation, and is reasonably certain to endure mental suffering and humiliation in the future, then you are at liberty to make such amount as you feel will reasonably compensate him for such suffering and humiliation, if any not exceeding the amount prayed for in the complaint.”

Objection is made that there is no evidence of mental suffering and humiliation. A mere reference to the evidence herein quoted is deemed a sufficient answer to that contention. Exception is taken to the use of the words

Appellant complains of numerous other instructions given by the court. It would unduly lengthen this opinion to give specific consideration to them all. They have been carefully examined and it is believed that there is no prejudicial error in any of them.

While, as stated, there are errors disclosed by the record, a consideration of the whole case, including the extreme youth of the plaintiff, leads to the conclusion that the errors complained of have not resulted in a miscarriage of justice.

The judgment is affirmed.

Waste, O. J., Richards, J., Sherik, J., and Curtis, J., concurred.