Raymond E. HILYAR, a minor, by Leslle Earl Hilyar, his Guardian Ad Litem, Plaintiff and Appellant, v. UNION ICE COMPANY, a Corporation, and Charles Irwin Ingram, sued as Charles Irwin Ingerman, Defendants and Respondents.
The question at issue is whether the record contains such substantial evidence of negligence in the operation of an ice truck on private grounds as would constitute a proximate cause of the injuries suffered by a five-year-old boy. The accident in question occurred about two p.m. August 12, 1952 at the Del Amo Trailer Court in Long Beach.
The trailer court is private property. The portion of the court of interest to this action is an area of about 1,600 square yards. It contains two north-south streets, each about twenty-two feet wide, designated B and C. Both are unpaved and unlined. The distance between then is sixty-five feet. The trailers face streets B and C. The accident involved a ton-and-a-half ice truck driven by defendant Ingram. It bore the name Union Ice in large letters, although the ice company disclaimed having an employment contract with Ingram.
The first appearance of the truck in this story was on C street at a point about twenty feet north of the east-west street where the driver delivered ice to a Mrs. Nicholson, occupant of the first trailer north of the east-west street. He had made daily deliveries to the court on week days for about three years. As he started to leave the position in front of the Nicholson trailer, he warned some children to get away from his truck and checked to see that no children were in his way. He moved slowly southward, turned left into the east-west street on which he proceeded easterly to B street. He turned left on B and had gone about 30 feet when he discovered that he had collided with a child who lay on the ground. He blew his horn at no time. On observing the fallen child which had apparently been struck by some part of his vehicle, Ingram promptly leaped from his moving truck and ran to the unhappy boy. The only witness to the movements of the vehicle preceding the accident testified that it ‘was just creeping.’ At the hospital the lad told the investigating officers that he ‘was walking alongside an ice truck and the truck turned a corner, knocking him to the ground and ran over his back.’ There was no other evidence.
Appellant contends that not all reasonable men would draw the same inference as to Ingram's freedom from negligence and therefore that issue should have been submitted to the jury. However, he does not indicate how a different deduction could have reasonably been made. There was no evidence of negligence. Ingram exercised the highest standard of care: he warned the children to keep out of his way; he proceeded very slowly; because there was no apparent danger he did not honk his horn; there was no evidence that he did not look out for children; he had a license from long, continuous use of the streets; there was no evidence as to where the child was walking when he encountered the truck; no positive proof as to where his body was found. Also, no evidence showed that Ingram had ever transgressed the high standard of care required of persons operating dangerous instrumentalities where children play. The exclamation of Ingram when he beheld the stricken child, to wit, ‘My God! My God! I hit him,’ cannot reasonably be interpreted as proof of a consciousness of guilt. Under the stress of anxiety, it is more likely that he feared he had hit the lad, for he had not been conscious of the child's presence in front of him or of his following behind the vehicle.
Before a man can be saddled with a judgment to pay money for his negligence, his carelessness must be established by reliable evidence. To conclude Ingram's negligence from the facts proved, a court would be required to do some speculating and conjecture that Ingram did not keep a look-out although he did; that he moved rapidly although he moved slowly; that he saw danger although he testified he sensed none.
The law is that where the evidence received leaves a case in a mist of speculation, while it may be inferred from the injured condition of the body of the victim that he had been struck down, “yet these physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. * * * The evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in mere conjecture.” Greene v. Atchison, Topeka and Santa Fe Ry. Co., 120 Cal.App.2d 135, 142, 260 P.2d 834, 838. The evidence does not show that Raymond followed the truck or ran under it. Certainly there was no proof that he ran around it or otherwise came into Ingram's area of vision.
Appellant cites many authorities supporting the rule of a higher standard of care where children are known to be in the vicinity and the defendant has knowledge of such fact. The doctrine so announced is sound, but there is no contrary evidence received to show that Ingram failed to exercise the proper degree of care or that he did not comply with the standards prescribed by law. The uncontradicted evidence proves his high regard for the safety of others as evidenced by the speed at which he moved and the care he exercised in his driving within the trailer court.
Appellant asserts that Ingram's failure to blow his horn constitutes negligence and that the significance of such failure should have been submitted to the jury. ‘There was no danger whatever apparent, and therefore, under such circumstances, it cannot be fairly maintained that a duty was imposed upon the driver of the truck as a reasonably prudent person to sound his horn.’ Moss v. Stubbs, 111 Cal.App. 359, 368, 295 P. 572, 575, 296 P. 86. This doctrine of apparent danger was observed by respondent in the circumstances at bar. That he complied with the higher standard of care cannot be denied. Respondent cannot reasonably be required to answer to a still higher degree of care than the circumstances require. The law does not demand that an ice truck driver alight at every three, five or ten feet to search the premises for concealed children.
The contention that the police officers' testimony points to the negligence of Ingram cannot be sustained. Such testimony was merely that they found what they thought was a blood stain on the street; no more, no less. No definite conclusions were drawn as to the circumstances under which the purported blood stain originated. There is no evidence imputing negligence to respondent Ingram.
In support of appellant's contention that the issue of respondent's negligence should have been submitted to the jury, appellant has cited a number of authorities. All are factually distinguishable. In Conroy v. Perez, 64 Cal.App.2d 217, 148 P.2d 680, the defendant remained in his truck and kept the engine running while several children played in and around the vehicle. The three-year-old daughter of plaintiff tripped about his car which he was washing while Perez waited. One witness saw the child standing two feet back of the truck and other children playing around it. She saw Perez back his truck without looking, and crush the child to death. Perez actually knew the children were playing around his truck and told them to leave.
In Freeland v. Jewel Tea Company, 118 Cal.App.2d 764, 258 P.2d 1032, plaintiff's 30-month-old daughter Karen and other children were playing around the truck of defendant. After inducing the children to leave the street, the driver pulled forward for an instant, then proceeded to back without sounding his born. He collided with Karen who was out of the range of his vision. She and her sister had been pursuing the truck after it left the east side of the street. From then until she was knocked down, the driver moved forward and without warning backed into a public street where he knew the children were at play. That knowledge made plaintiff's case complete. In the case at bar, Ingram first directed the children to avoid his truck. He then drove slowly south, on C street, turned east, watching in his rear view mirror and out on both sides of the truck, moved to B street where he turned north at about three miles an hour. He neither saw nor heard anything to indicate the presence of a child until he had gone about thirty feet north. From the time he left the Nicholson truck he drove in second gear. Not a witness placed the little boy at any time while Ingram drove from C street until the lad had fallen on B street. Not having seen a child as he proceeded, having left the children at Nicholson's, Ingram saw no need for sounding his horn.
In Frederiksen v. Costner, 99 Cal.App.2d 453, 221 P.2d 1008, the defendant was as careless as the defendants in the two cases last above discussed.
In De La Torre v. Valenzuela, 102 Cal.App.2d 586, 228 P.2d 13, the court had evidence that would have justified the court's finding that there was apparent danger of injuring the workmen which required a warning of a truck's approach. In Lever Bros. Company v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002, the proof showed an accident in a congested area. Just before the accident, a school bus had discharged about 25 children. Defendant driver approached at a speed in excess of 50 miles per hour. Clearly, he was negligent.
The other cases cited by appellant, Edelson v. Higgins, 43 Cal.App.2d 759, 111 P.2d 668; Bessierre v. Alabama City, G. & A. Ry. Co., 179 Ala. 317, 60 So. 82; Kircher v. Atchison, T. & S. F. Ry. Co., 32 Cal.2d 176, 195 P.2d 427, are as readily distinguishable. In the Kircher case, while there were no eye witnesses, the plaintiff testified fully as to how the accident occurred.
In view of the conclusions above announced as to the lack of proof of Ingram's negligence, a discussion of the other contentions is not necessary.
MOORE, Presiding Justice.
McCOMB and FOX, JJ., concur.