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

Scott Bradley HUETT, a Minor by his Guardian ad Litem, Edward Huett, Plaintiff and Appellant, v. Richard Jerd GOOD, Harold W. Good and Roberta J. Good, sued as John Doe I, Defendants and Respondents.

Civ. 25297.

Decided: July 24, 1961

Arlo E. Rickett, Jr., Pomona, for appellant. King & Mussell, San Bernardino, for respondents.

Order Modifying Opinion.

Plaintiff, Scott Bradley Huett, aged three, brought this action for damages, through his guardian ad litem, for personal injuries sustained when he was struck by an automobile driven by defendant Richard Jerd Good and owned by defendants Harold W. Good and Roberta J. Good. A non-jury trial resulted in judgment for defendants.

Appellant's major claim is that defendant was negligent as a matter of law; short of that counsel's argument that ‘the driver of the automobile was negligent’ amounts only to an invitation to this court to review the evidence contrary to settled precedent. In appraising appellant's assertion of insufficiency of the evidence in this regard we are bound by the familiar rules thus stated in New v. New, 148 Cal.App.2d 372, 383, 306 P.2d 987, 994: ‘The appellate court must accept as established all facts and all inferences favorable to respondent which find substantial support in the evidence. ‘And where appellant urges the insufficiency of the evidence to sustain the findings * * * the rule is that, ‘Such contention requires [appellant] to demonstrate that there is no substantial evidence to support the challenged findings.’ (Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550.) (Emphasis added.) It is said in Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429, 45 P.2d 183, that: ‘It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deduction for those of the trial court.’' Hartzell v. Myall, 115 Cal.App.2d 670, 673, 252 P.2d 676, 677.'

The accident happened on Sunday, February 22, 1959, about 2:15 p. m. The minor, hereinafter referred to as appellant, was playing in his front yard or on the sidewalk on the east side of Kathryn Street which runs north and south in the City of Pomona. Near the southwest corner of the lot on which the Huett family home is located is a driveway opening. The Huett station wagon was parked in front of the home on the east side of Kathryn, next to the curb heading south, approximately 3 1/2 feet north of the driveway. Approximately 51 feet south of the station wagon there was parked a panel truck next to the east curb and in front of the home of Huett's neighbor. No other vehicles were parked on the street in this block. Kathryn Street is 36 feet in width from curb to curb, the sidewalks 5 feet and parkways 12 feet,—total 60 feet. County Road, a street running east and west, is approximately 160 feet south of the most northerly part of the Huett driveway. A 1958 Chevrolet driven by Richard Jerd Good rounded the corner of County Road and Kathryn Street, coming from the east, and proceeded north on Kathryn. Said defendant, driving 15 to 20 miles per hour, saw children playing on both sides of the street. He was looking generally ahead, and attempting to keep children on both sides of the street within his range of vision. He saw no children in the street. Five children ranging in age from 9 to 12, including appellant's older brother, were playing ‘ball tag’ on the west side of Kathryn. Appellant was struck by defendants' automobile as he was crossing the street moving toward these boys. He had come from his front yard or the sidewalk at a gait described by one of the boys as halfway between a walk and a run. He was a small child, about three feet high, but dressed in bright colors. His brother Robbie, who was one of the five playing ball tag, saw him in the street and yelled to him ‘Scott, look out’; he stopped momentarily as he turned to look at the approaching car and was hit immediately by the left front fender. Had he not stopped he might have cleared its path for defendant saw the top of his head about that time and threw on his brakes immediately but was unable to avoid the impact. Defendant had not seen Scott before that instant. He testified: ‘I was looking in the general area of watching trying to watch all those children at the same time. I wasn't looking specifically for Scott. * * * I believe he almost made it across in front of me.’ The point of impact was about 164 feet north of the north curb line of County Road and 15 feet west of the east curb on Kathryn Street.

The trial court found that defendant was ‘not guilty of any negligence or carelessness' and that the accident ‘was an inevitable or unavoidable accident.’

Appellant contends that ‘the driver should have seen the child when the child started to move from his front yard to cross the street and that the driver could have stopped his car in time to avoid hitting the child’; and that this negligence was the proximate cause of the accident.

In Gray v. Brinkerhoff, 41 Cal.2d 180, 183, 258 P.2d 834, 836, it is said: ‘Whether or not defendant was guilty of negligence * * * is ordinarily a question of mixed fact and law and may be determined as a matter of law only if reasonable men following the law can draw but one conclusion from the evidence presented.’ Among the cases upon which appellant relies is Cambou v. Marty, 98 Cal.App. 598; in Law v. Shoate, 178 Cal.App.2d 739, 3 Cal.Rptr. 274, 275, plaintiff-appellant also relied upon that case ‘to show that respondent must under the facts and circumstances of the instant case be held guilty of negligence as a matter of law.’ The court said (178 Cal.App.2d at page 741, 3 Cal.Rptr. at page 275): ‘We find no merit in appellant's contention. Neither the Cambou case nor the Gorzeman case attempts to define rigidly a standard of conduct which must be adhered to under all circumstances lest the actor be considered negligent. Such was the ruling in the case of Lotta v. City of Oakland, 67 Cal.App.2d 411, 413, 154 P.2d 25, 26, wherein the court said: ‘Negligence as a matter of law, and negligence per se, are terms of general use, but not easily defined. Where the standard of conduct of a reasonable man is expressly defined by legislative enactment or judicial decision the failure to conform with that standard is called negligence per se. But, when the standard of obligatory conduct is not fixed by a legislative enactment, it is that of a reasonable man under the circumstances. Rest. Torts, § 285. Where the standard is not fixed by judicial decision covering the same situations or circumstances the jury must determine the issue of negligence on the basis of the standard of reasonable conduct, or the degree of care which a reasonable person under similar circumstances would exercise to protect another from harm. [Citation.]’1

Kading v. Villis, 135 Cal.App.2d 82, 87–88, 286 P.2d 861, 865: “As the courts have frequently said, it is ordinarily necessary to exercise greater care for the protection and safety of young children than for adult persons possesing normal and mature faculties. Their conduct is unpredictable and one operating a motor vehicle should anticipate their thoughtlessness and impulsiveness. [Citation.] The presence of children is in itself a warning requiring the exercise of care for their safety. [Citation.] Moreover if the evidence shows that a driver has knowledge of the presence of children he may be held to have been responsible although it appears that he did not see the injured child in time to prevent the injury.' Conroy v. Perez, 64 Cal.App.2d 217, 224, 148 P.2d 680. * * * Ordinarily the question of whether a driver should be alerted to the necessity of looking for the presence of children is one of fact for the jury to solve, as is also the question of whether that duty, once it arises, has been properly performed.' Prato v. Snyder, 12 Cal.App.2d 88, 97, 55 P.2d 255, 259: ‘Under the general rule, the failure to look at all constitutes negligence as a matter of law, while the question of whether one who looks sees all that he should is one of fact for the jury.’ See also, Jones v. Brown, 176 Cal.App.2d 184, 189, 1 Cal.Rptr. 267; Hilyar v. Union Ice Co., 45 Cal.2d 30, 37–38, 286 P.2d 21. Thus, failure to see is not necessarily negligence as a matter of law.

The trier of fact could reasonably conclude that defendant did everything possible to avoid the accident after he saw appellant, and that he was not negligent in failing to see him in the street sooner,—that the accident happened so suddenly that it was unavoidable. See, Geren v. Lowthian, 152 Cal.App.2d 230, 233–234, 313 P.2d 12. Although a finding to the contrary would find support in the record, we cannot hold, as a matter of law, that respondent was negligent.

This is a very close case. The trier of fact would have been justified in holding that defendant, who concededly was aware that children played in the street in that area and actually knew that they were playing at that time upon the sidewalk on both sides of the street, who had for 50 feet or so an unobstructed view of the portion of the sidewalk from which Scott emerged, should have been sufficiently alert to discover his presence as soon as he left the sidewalk, and knowing the propensities of children, as he admittedly did, should have stopped or slowed his car soon enough to avoid striking the child. But if we were to adopt or lean toward that view we would not be justified in reversing the judgment for, as pointed out in New v. New, supra, 148 Cal.App.2d 372, 383, 306 P.2d 987, 995, ‘[w]hen two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deduction for those of the trial court.’ See also, Primm v. Primm, 46 Cal.2d 690, 694, 299 P.2d 231

This in our judgment is a case wherein the trial judge could have drawn two conflicting inferences of fact—negligence or due care—and hence it was for him, not the court of review, to select the one deemed more reasonable. The trial judge having done so, we cannot reject his selection or the conclusion based thereon. Of course, the question of proximate cause was likewise a question of fact for the jury. Hilyar v. Union Ice Co., supra, 45 Cal.2d 30, 38, 286 P.2d 21; Valdez v. Clark, 173 Cal.App.2d 476, 478, 343 P.2d 281.

Appellant contends that the court erred in denying his motion made prior to trial to examine certain papers in possession of defendants' attorneys. These consisted of photographs of the scene of accident taken by one Van Alstine, an employee of Allstate Insurance Company, and his report to his company; also statements procured by him from the defendant driver and several other witnesses. An affidavit of Van Alstine avers that he is a casualty adjuster employed by Allstate, defendants' insurance carrier; that such investigation and said statements were made and taken pursuant to a policy of liability insurance issued by Allstate by the terms of which it agreed to pay on behalf of the defendants and persons covered by the terms thereof, all sums which said persons should become legally obligated to pay as damages because of bodily injury or death, sustained by any person and arising out of the ownership, maintenance, or use of the vehicle described in plaintiff's complaint; that said investigation and statements were made for the primary purpose of transmittal to said defendants' attorneys in the course of profesional employment for the purpose of information and aid to said attorneys in defending any litigation arising out of said accident; that said statements, and each of them, were in fact transmitted to King and Mussell, defendants' attorneys, pursuant thereto. This uncontradicted evidence is sufficient to justify the court's implied finding that the dominant purpose of the investigation and statements was to enable said attorneys to properly handle any claim and to defend any lawsuit; they are thus privileged under the authority of Jessup v. Superior Court, 151 Cal.App.2d 102, 107–110, 311 P.2d 177; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 716–718, 339 P.2d 567; Holm v. Superior Court, 42 Cal.2d 500, 507, 508, 267 P.2d 1025, 268 P.2d 722. The fact that the statements were taken before any litigation was started is immaterial, as is shown by the last cited cases.

There is no merit to appellant's contention that the trial court erred in ‘treating unavoidable accident as an affirmative defense.’ This was a non-jury trial, and the following statement from Land v. Gregory, 168 Cal.App.2d 15, 19, 335 P.2d 141, 143 is pertinent: ‘The socalled defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury. Butigan v. Yellow Cab Co., 49 Cal.2d 652, 658–659, 320 P.2d 500, 65 A.L.R.2d 1. We are not here dealing with the question of the effect of instructions to a jury on ‘unavoidable accident’ and, the finding of the trial court that the collision was directly and proximately the result of an unavoidable accident insofar as the defendant Archie G. Gregory was concerned is not inconsistent with the finding that at all times mentioned in the complaint said defendant was driving and operating his pickup truck with due care and caution.'

Lastly, appellant contends the trial court erred in not making a finding of fact on the issue of agency. There is a finding that defendant driver was operating said automobile with the permission and consent of the owners, defendants Harold W. Good and Roberta J. Good, who were the father and sister of said driver, respectively. That is enough to support a judgment within the statutory limit of liability of owners. Moreover, in view of the finding upon negligence, agency became wholly immaterial. See, Aguirre v. Fish & Game Comm., 151 Cal.App.2d 469, 473, 311 P.2d 903; Bohn v. Watson, 130 Cal.App.2d 24, 41, 278 P.2d 454.

Judgment affirmed.

Order Modifying Opinion.

Our opinion herein was filed on July 24, 1961. The Supreme Court's ruling in Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90. Apprised of the contents of that decision, we have reexamined the record and have concluded that application of the Greyhound rules to the case at bar spells error on the part of the trial court in denying the motion for inspection, but we cannot hold that it was prejudicial.

Our opinion is modified as follows. The portion beginning with the words ‘This uncontradicted’ in the twenty-first line of the second column on page 175 thereof and ending with the words ‘cited cases' at the end of the paragraph is stricken and the following is bubstituted in its place.

The motion sought inspection of the Van Alstine report and statements taken from witnesses Richard Jerd Good, Joseph Veneglass, Joe Lawrence, Michael Osborne, Lewis Ray Keller and James Lawrence. Of these persons Osborne, Keller and James Lawrence were called as witnesses for plaintiff. There is no showing of surprise, hostility or even disappointement with the testimony of these plaintiff's witnesses, nor is there any suggestion of any manner in which their testimony could have been improved had plaintiff's attorney been in possession of their statements given to Van Alstine. Mr. Veneglass was the Huett's neighbor on the south, but there is no showing whatever as to whether he did or did not have any knowledge of the accident or the surrounding circumstances. There is like absence of showing concerning Joe Lawrence. That plaintiff's counsel had access to defendant's statement to the police appears from the fact that Officer Bisgard was called as plaintiff's witness and testified to the contents of the statement. Plaintiff's counsel does not make any effort to show any real prejudice from the ruling but he stands upon the bare legal right to an inspection. As in Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 716, 339 P.2d 567, 74 A.L.R.2d 526, there was no substantial ground for reversal. We cannot say that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243) and therefore we cannot declare a miscarriage of justice.


1.  The other cases cited by appellant do not stand for a contrary rule; each one clearly presented a question of fact to be determined by the jury or court.

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