FAVALORA v. ODEN

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District Court of Appeal, First District, Division 2, California.

FAVALORA et ux. v. ODEN et al.

Civ. 9898.

Decided: May 06, 1936

John H. Thomsen and J. W. Lenahan, both of Los Angeles, for appellants. J. Hampton Hoge, of San Francisco (A. Dal Thomson, of San Francisco, of counsel), for respondents.

Plaintiffs sued for damages for the death of their child aged four years and eight months. The cause was tried before the court sitting without a jury. Findings were made that defendants were not negligent and that plaintiffs were guilty of contributory negligence. The appeal is confined to an attack on these findings.

The defendant was operating a truck in the delivery of milk. While the truck was stopped at the curb of the left or “wrong” side of the intersection of two streets, the little child entered the street and ran or “toddled” across the intersection and then along the right–hand side of the truck to a point immediately in front of it. At that moment the truck was started, and the child was struck down and killed. The evidence was that the child could not have been seen by the defendant and that the latter had exercised all the care and caution that could be demanded of any one operating the truck. The evidence furthermore demonstrated the contributory negligence of the parents in permitting the child to play in the street in spite of previous perils and of warnings of the danger.

The judgment is affirmed.

NOURSE, Presiding Justice.

We concur: STURTEVANT, J.; SPENCE, J.

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