RAGGIO v. MALLORY (1937)

Action for personal injuries. The complaint contained two causes of action directed against the three named defendants. The first cause of action alleged that on December 5, 1934, and while John Raggio, a minor then twelve years of age, was a pedestrian on a bridge forming part of the public highways in Marin county, he was negligently struck and injured by an automobile driven by defendant Barbara Mallory, also a minor. It was further alleged that the automobile was owned by defendant Helen Mallory; that she was a passenger in it at the time of the accident; that the daughter was driving the car with the knowledge and permission and as agent of the mother. After detailing his injuries, plaintiff John Raggio, through his guardian ad litem Guiseppi Raggio, alleged general damages in the sum of $10,000, and plaintiff Guiseppi Raggio, the father, prayed for consequential damages in the sum of $1,057.81. The second cause of action duplicated the allegation of the first and added a paragraph averring that defendants Presley Mallory and Helen Mallory had signed an application of their minor daughter Barbara for a license to operate motor vehicles. A joint answer filed by defendants contained a general denial and a special defense that plaintiff John Raggio was guilty of contributory negligence. After trial the jury found a verdict in favor of defendants, which recited that they were not guilty of negligence. Motion for a new trial was made and denied. This is an appeal from the judgment and order.

As grounds for a reversal, appellants claim that the judgment lacks evidentiary support for the reason that the record establishes that negligence of Barbara Mallory was the sole proximate cause of the accident in which plaintiff minor was injured. They also claim that the trial court misdirected the jury to the prejudice of the plaintiffs.

Briefly stated, the facts show that John Raggio a minor twelve years of age, received the injuries complained of on the Alto bridge in Marin county. The bridge is some seven hundred feet long and twenty–one feet wide. At each side thereof and abutting the pavement is a wooden curb or wheel guard approximately six inches square, and abutting each curb is a wooden rail guard three feet high built on wooden posts six feet three inches apart extending the entire length of the bridge. The bridge surface is thirty–four feet above the Northwestern Pacific Railroad Company tracks, which run under the bridge north and south at approximately the center of its length. At the time of the accident plaintiff minor with some youthful companions was walking along the north side of the bridge. When he reached a point above the railroad tracks he became engrossed in a passing electric train. He thereupon stopped, mounted the wooden curb, leaned over the wooden rail and directed his attention downward to the train, at which he threw some pebbles or dirt. While he was thus engrossed in play a Ford coupé approached the bridge at a speed of thirty–five to forty miles an hour. It was driven by defendant Barbara Mallory. Her mother, defendant Helen Mallory, was an occupant of the machine. As the car was driven upon the bridge its progress was slowed down to approximately twenty–five or thirty miles, as testified to by the mother and daughter. The car was traversing the bridge equidistant between the wooden curb at the north side thereof and a white line marking the center of the pavement, which left a margin of some two feet on either side of the car. From a point some hundred and fifty to two hundred feet away the driver of the automobile saw plaintiff leaning over the north guard rail engrossed in watching the train which was passing under the bridge. The driver did not at this time sound her horn or give any signal of her approach. When some twenty or thirty feet away the mother directed the attention of her daughter to the presence of plaintiff and his companions and she replied that she saw them, and for the first time sounded her horn some two to four times. At this moment the boys had their back to the approaching car and remained at play, and the driver of the car and her mother saw nothing, so they testified, to indicate to them that the boys heard the horn or knew of their approach for they were still engaged in their play. Notwithstanding this fact defendant driver continued with undiminished speed an undeviating course until the accident occurred, the right front fender and light of the automobile striking plaintiff and causing the injuries complained of. Just prior to the impact an automobile was approaching in the opposite direction, but it was well over on its own side of the road and did not prevent the turning of defendants' machine from the course it was traveling. At the trial the theory of the accident on the part of plaintiffs was that the child was struck without warning by the automobile while he was standing with his right foot on the pavement and his left foot on the wooden curb looking over the guard rail. That of the defendants was that he suddenly jumped backwards against the automobile when it was opposite him. There was evidence to show that the injured plaintiff jumped back to avoid the conductor of the train seeing him. Whatever caused him to jump, we are of the opinion that the facts show beyond question that the driver of the car was guilty of negligence as a matter of law and that her acts were the sole proximate cause of the injury.

In reaching this conclusion we are not unmindful of the rule that a refusal to grant a new trial is largely in the discretion of the trial court and its action will not be set aside by the appellate court where there appears to be reasonable or even a fairly debatable justification therefor. The question then is as to whether there is sufficient legal support in the evidence for the judgment in the case. In determining this question all legal intendments are in favor of the judgment, and all conflicts in the evidence must be resolved in favor of the respondents. Here, however, there is no conflict in the evidence and it establishes that the negligence of defendant driver was the sole proximate cause of the injuries suffered by the injured plaintiff.

It is respondents' position in support of the judgment that the evidence is sufficient to show that defendant driver was free from negligence; that plaintiff minor was in a place of safety when the automobile approached him; that the car was being operated at a moderate and careful speed on a proper place upon the highway and the driver of the car had no reason to believe that the injured child would jump in front of the automobile she was driving. There is no force in the argument. The evidence shows that there was a complete failure on the part of the driver of the car to use ordinary or any care at any time for the safety of the child. She saw the children when one hundred to two hundred feet away and did not take the precaution to sound her horn, although the rate of speed she was traveling would bring her opposite them in a few seconds. She delayed this precaution until within twenty or thirty feet of them, notwithstanding she and her mother saw nothing in their conduct which indicated to them they were aware of their peril, as their backs were turned toward respondents and they were still engaged in play. The driver had time and opportunity to change her course or stop, but she did neither, driving on without change of speed or direction and applied her brakes only after striking plaintiff. The sounding of her horn when twenty or thirty feet away from the children, at the rate she was traveling, brought her machine abreast of them in a second's time; she was covering from thirty to forty–four feet a second. The sounding of her horn under these circumstances was no warning, being almost a simultaneous act with the striking of the child. The situation might well have suggested to her that the children would become startled and jump back in the path of her car. The authorities in this state support this conclusion.

In Scandalis v. Jenny, 132 Cal.App. 307, 22 P.(2d) 545, the defendant failed to sound his horn until he was within a few feet of a child playing in the street, and it was held that he should have been fearful that the child thus startled by the nearness of the horn might well be expected to spring into his path and that ordinary care on his part should have led him to give way, or, if he could not do so, to slow down or stop until the hazard that confronted him had been removed. In this case a judgment in favor of defendant was reversed. One is bound at his peril to exercise ordinary care to anticipate danger. Soda v. Marriott, 118 Cal.App. 635, 5 P.(2d) 675.

It is well established that it is ordinarily necessary to exercise greater care for the protection and safety of young children than for adult persons possessing normal and mature faculties. One should anticipate thoughtlessness and impulsiveness in the conduct of a young child. Shannon v. Central–Gaither U. School Dist., 133 Cal.App. 124, 23 P.(2d) 769; 45 Cor.Jur.702. That which would be considered ordinary negligence in reference to a grown person may be gross negligence as respects a child. Parra v. Cleaver, 110 Cal.App. 168, 294 P. 6. The presence of small children playing in a street or near the curbing should be a warning to drivers of passing automobiles requiring the exercise of care for their safety. Seperman v. Lyon Fire Proof Storage Co., 97 Cal.App. 654, 275 P. 980. The belated sounding of the horn under the circumstances did not show any care on the part of the driver. Respondents argue that plaintiff was in a place of safety and had he not stepped therefrom he would not have been injured; that defendant driver had no reason to believe he would do so. It cannot be said that standing on a curb six inches square under the circumstances in this case constituted a position of safety for a child. The law is clearly established that the duty of a motorist to take precautions for the safety of children at play extends not only to children playing in the street, but also to children paying near the street. Waterbury v. Elysian Spring Water Co., 139 Cal.App. 355, 33 P.(2d) 1048. Defendant driver had no right to assume that the child would remain indefinitely hanging over the rail, especially when she was in doubt about the boys' knowledge of her approaching car. She was bound to anticipate that he would move at any time, in which event he would be directly in her path. Children must be expected to act upon childish instincts and impulses; others are chargeable with a duty of care toward them and must calculate upon this and take precaution accordingly. When children are plainly visible a driver's obvious duty on approaching the spot is to have his car under such control as the circumstances demand, so that, responsive to the child's capricious acts, he can stop to avoid injury. One driving a vehicle even at a lawful rate of speed must not assume that children of immature age will not expose themselves to danger. Negligent indifference to the safety of children and others occurs with alarming frequency. Here, as stated, it appears that defendant driver was doubtful as to whether the children knew of her approach, for she testified that nothing occurred to indicate such knowledge on their part, and yet she drove on at a speed of twenty–five miles an hour without any slackening of her speed, or deviation in her course, and struck the minor plaintiff, inflicting serious injury. With the exercise of the slightest care she had every opportunity of avoiding the injury. Failing to exercise any care, her act under the circumstances was the sole proximate cause of the injury, for which she is responsible even if it be assumed that the child was guilty of negligence in jumping back without looking, as defendant knew or ought to have known the danger he was in, of which danger he was unaware. She had the last clear chance to avoid the injury and she failed to avail herself of it. Girdner v. Union Oil Co., 216 Cal. 197, 13 P.(2d) 915. This conclusion renders unnecessary a discussion of the instructions complained of.

The judgment and order are reversed.

I dissent. The jury was called upon to decide two main issues of fact––the alleged negligence of the driver of the automobile, and the alleged negligence of the plaintiff. By rendering a general verdict for the defendants it found in favor of defendants and against plaintiff on both issues. Subsequently the trial court considered the question of the sufficiency of the evidence on motion for new trial, and by its denial of the motion it approved the findings of the jury on both issues. As said in Bellon v. Silver Gate Theatres, Inc., 4 Cal.(2d) 1, 47 P.(2d) 462, when on appeal 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. The same principle is stated in California Jurisprudence, vol. 2, p. 912, as follows: “An appellate court possesses none of the functions of a jury, and cannot assume to exercise them. While the question of the sufficiency of the evidence, as a matter of law, to support a verdict or finding may be presented to the appellate court for review, its duty stops when it has determined that there is some substantial evidence to support it. It will not weigh the evidence, pass upon the credibility of witnesses, nor substitute its judgment thereon for that of the trial court, but will uphold the verdict or finding even though it would have decided otherwise if it had occupied the place of the trial judge or jury.” Furthermore, it is well settled that in reviewing evidence on appeal all conflicts must be resolved in favor of the prevailing party and all legitimate inferences indulged in to uphold the verdict if possible. The evidence most favorable to the prevailing party must not only be taken as true, but it must be construed most strongly against the appellant, and in the light most favorable to the respondent; and if there is any substantial evidence to support the conclusions reached by the jury, or if the verdict can be sustained on any reasonable theory, shown by the evidence, a reversal is not justified. Even though two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. In other words, the appellate court may not invade the province of the jury and retry facts which are sufficient to support the verdict. Therefore, under the foregoing rules, in order to justify the judgment of reversal directed by the majority opinion herein, it must appear not only that the conclusions reached by the jury and the trial court on both issues are wholly without evidentiary support, but that contrary to such conclusions the contradicted and uncontradicted evidence given on the part of defendants is susceptible of but one construction, namely, that the driver of the car was negligent, that such negligence was the sole proximate cause of the accident, that there was no negligence whatever on the part of plaintiff contributing thereto.

The record shows that the accident happened between 3 and 4 o'clock in the afternoon, in a forty–five mile an hour zone; and in substance the evidence adduced on the part of the defendants was as follows: Miss Mallory testified she drove upon the bridge at a speed of “about thirty–five miles an hour; thirty to thirty–five”; that she saw the boys when about one hundred fifty to two hundred feet distant from them; that they were then standing at the crest of the bridge, clear of the traveled portion thereof, leaning over the bridge rail, looking down on the electric car tracks immediately below them, and throwing something at the electric train which was passing underneath the bridge; that she was traveling in the center of the marked traffic lane, and when about one hundred feet distant from the boys she reduced her speed to about twenty–five miles an hour, and it may have been less; that when “about thirty feet” from them she sounded her horn two or three times; that at that time the boys were still in the same position, leaning over the rail, clear of the traveled portion of the bridge; and while they were in that position and without increasing her speed she proceeded to pass them, but that just as she drew up parallel with them plaintiff jumped backward suddenly from the rail of the bridge directly into the pathway of the automobile, and was struck by the right front fender; that the suddenness with which plaintiff sprang in front of her car gave her no opportunity to divert the course of the car; that all she could do was to apply the brakes, which she did immediately and brought the car to a complete stop within a car's length from the point of the impact. The testimony given by Miss Mallory's mother was to the same effect. She fully corroborated her daughter as to the operation of the automobile, the location of the boys at the rail of the bridge, the slackening of the speed of the automobile, the sounding of the horn, and as to the circumstances attending the accident. With respect to the latter, she testified that from the time they first saw the boys until the instant of the accident, the boys remained at the rail of the bridge, off the traveled portion thereof; and that when the automobile was directly opposite them plaintiff, without warning, jumped suddenly backward from the rail into the pathway of the automobile, and that there was no way to avoid striking him. Moreover, the testimony of both Miss Mallory and her mother as to the sounding of the horn and the circumstances attending the accident was fully corroborated by one of plaintiff's companions, named Lloyd Perkins, aged eleven years. He testified he was standing beside plaintiff at the rail of the bridge, and saw him jump backward suddenly into the pathway of the automobile. This witness also gave a clear explanation as to the reason plaintiff suddenly leaped backward from the bridge rail. In this regard he testified that he and his companions, including plaintiff, were leaning over the bridge rail throwing small rocks and clods of dirt at the train passing underneath; that a clod of dirt thrown by plaintiff struck the train and he said to plaintiff, “Nice shot, Johnny”; that just then the train passed from underneath the bridge and the conductor, who was standing on the rear platform, looked up at them; that in order to avoid being seen plaintiff jumped backward suddenly from the rail right into the pathway of the automobile. The witness also corroborated the testimony of Miss Mallory and her mother that the car was stopped immediately following the impact. Furthermore, the evidence shows that the bridge is part of the main highway; that plaintiff lived in that neighborhood, and consequently was familiar with the automobile traffic passing over the bridge; that he was past twelve years of age, in good health, mentally bright and active, and therefore subject to the doctrine of contributory negligence. Moeller v. Packard, 86 Cal.App. 459, 261 P. 315, 317; Richardson v. Ribosso, 120 Cal.App. 641, 8 P.(2d) 226; Studer v. Southern Pacific Company, 121 Cal. 400, 53 P. 942, 66 Am.St.Rep. 39; De Nardi v. Palanca, 120 Cal.App. 371, 8 P.(2d) 220; Greeneich v. Knoll, 73 Cal.App. 1, 238 P. 163; 2 Cal.Jur., Ten Year Supp., §§ 277, 278, pp. 441, 443, 445.

In the face of the foregoing facts, and keeping in mind the legal rules governing appellate courts in reviewing evidence on appeal, I am unable to agree with the majority opinion that the verdict of the jury and the conclusions reached by the trial court in passing on the motion for a new trial, are wholly without evidentiary support. To the contrary, it appears from said facts that at the time of the accident the automobile was being driven well within the statutory speed limit; that from the moment the boys first came into view of the driver up to the instant of the accident they were never on the traveled portion of the bridge, but at all times remained standing at the rail of the bridge, out of the pathway of the automobile; that while so standing in that position they were in an apparent place of safety, and that the driver of the automobile, before attempting to pass them, sounded her horn as a warning of her intention so to do. The jury and the trial court were justified in concluding, therefore, in my opinion, that the driver of the automobile was not negligent in the operation of her car and that the accident was proximately due to the fact that plaintiff, without exercising any caution whatever for his own welfare, leaped backward suddenly from his place of safety onto the traveled portion of the bridge directly in the pathway of the oncoming automobile.

As to the sounding of the horn, the record discloses that at the trial plaintiff claimed it was not sounded at all, and that therefore such omission constituted negligence on the part of the driver; whereas on the appeal it is contended that although the horn was sounded, the driver was nevertheless guilty of negligence, first, because in sounding it not more than thirty feet from him it may have startled him and caused him to jump backward; secondly, because if the horn had been sounded when the driver first came in sight of the boys plaintiff would have been warned of the approach of the automobile. Clearly, however, plaintiff is not in a position now to claim he was startled by the sounding of the horn because according to his own testimony he did not hear it; and if he did not hear it when sounded thirty feet from him, the jury was evidently warranted in the belief that he would not have heard it if it had been sounded one hundred fifty or two hundred feet from him.

The majority opinion, as will be noted, holds in effect, contrary to the conclusions reached by the jury and the trial court, that despite the fact that the boys were at all times off the traveled portion of the highway and therefore would not have been injured if they had remained in that position, they were not in a place of safety; that such being the case, the driver of the car was negligent as a matter of law in proceeding to pass them without first ascertaining whether they heard the horn and what they intended to do; furthermore, that such negligence was the sole proximate cause of the accident. It would seem, however, that in so holding the majority opinion is at variance with the decisions in the cases of Moeller v. Packard, supra, and Richardson v. Ribosso, supra, wherein judgments in favor of the defendants were affirmed. In the former case the driver of the car observed four children walking along the highway ahead of him. One of them was eight and a half years old. A car approached in the opposite direction, and the children stepped off the paved portion of the highway to the unpaved portion thereof. While they were in that position the defendant, without sounding his horn, attempted to pass them at a speed of twenty–five miles an hour, and when within forty feet of them, the child eight and a half years old “suddenly ran out onto the paved portion of the highway to recover some article that had blown from her hand,” into the pathway of the automobile, and was fatally injured. In the Richardson Case, the injured child was seven years old, and was seen by the defendant playing on the sidewalk with other children. He slackened his speed, but did not sound his horn or give any other signal of danger, and suddenly the injured child ran diagonally across the street into the side of the automobile. In each case, in sustaining the conclusions reached by the jury and trial court as to want of negligence on the part of the driver, the judgment of affirmance is evidently based upon the premise that since the child was off the traveled portion of the highway, it was in a place of safety, and that under such circumstances the operator of the automobile was not negligent in attempting to pass at a prudent rate of speed; that he had the right to assume that the child would not suddenly place itself in a position of danger without first exercising reasonable care to assure its own safety.

In any event, the question of whether or not a pedestrian, child, or adult, who is off the traveled portion of the highway when the driver of an automobile proceeds to pass him, is in a position of safety, is doubtless one of fact; and in view of the affirmative findings of the jury and the trial court in the present case, and similar conclusions reached by the trial and appellate courts in the two cases above cited, it would appear that the most that can be said is that the issue is one upon which reasonable minds might differ. Consequently, under the legal rules above set forth, it is beyond the power of the reviewing court herein to substitute its deductions for those of the jury and the trial court.

The cases of Scandalis v. Jenny, 132 Cal.App. 307, 22 P.(2d) 545, and Soda v. Marriott, 118 Cal.App. 635, 5 P.(2d) 675, upon which the majority opinion appears to be based, involved facts essentially different from those of the present case. They were cases of infants playing in the traveled portion of the street. Obviously, therefore, they were not in places of safety, and the drivers were negligent in proceeding without first ascertaining that the infants had reached places of safety. That is to say, in the Scandalis Case, the injured child was three years old, and was seen by the driver of the automobile playing in the street directly in the pathway of his automobile, with its back turned toward the automobile and looking down. And in the Soda Case the child was four and a half years old and was observed by the driver of the automobile running on the traveled portion of the highway directly toward the machine, pursued by an adult person who was attempting to catch and hold him. Moreover, on account of the age of the injured infants, the doctrine of contributory negligence was not made an issue in either of those cases; whereas here the age of the child was such that contributory negligence was available and pleaded as a defense; and in this regard it would seem that the evidence above narrated, showing that plaintiff jumped backward suddenly from his place of safety at the bridge rail onto the traveled portion of the bridge, directly into the pathway of the oncoming automobile without first looking for approaching cars, is legally sufficient to support the conclusions reached by the jury and the trial court that his injuries were due to his own carelessness.

The majority opinion does not discuss or definitely decide the question of the sufficiency of the evidence relating to the issue of contributory negligence, but it is stated therein that even though it be assumed that plaintiff was guilty of contributory negligence, the driver of the car had the last clear chance to avoid the collision. In this connection the record shows that the doctrine of the last clear chance was not made an issue at the trial by the evidence or the instructions. The point is urged for the first time on appeal. However that may be, in order to invoke such doctrine in any given case the following elements must be present: (1) That the plaintiff has been negligent; (2) that as a result of such negligence plaintiff placed himself in a position of danger from which he could not escape by the exercise of ordinary care; (3) that defendant was aware of plaintiff's dangerous situation and realized or ought to have realized plaintiff's inability to escape therefrom; (4) that defendant had the last clear chance to avoid the accident by the exercise of ordinary care, and that he failed so to do. Darling v. Pacific Electric Ry. Co., 197 Cal. 702, 242 P. 703; Young v. Southern Pacific Co., 189 Cal. 746, 210 P. 259. Here, as shown, when Miss Mallory proceeded to pass plaintiff he was leaning against the bridge rail, clear of the pathway of automobile traffic and consequently in an apparent place of safety. Therefore there is no ground for holding that at that time plaintiff was in a dangerous situation from which he could not escape by the exercise of ordinary care, or that she realized or ought to have realized he was in such dangerous position. Richardson v. Ribosso, supra. And the answer to the suggestion that she might have avoided striking him as he sprang backward into the pathway of her automobile, by diverting the course of the automobile, is to be found in the testimony given by her and her mother, which the jury and the trial court accepted as true, to the effect that plaintiff leaped backward so suddenly she had no opportunity to do anything more than to apply the brakes, which she did. Furthermore, the evidence shows that when plaintiff leaped backward in front of her car she was driving within two feet of the middle lane defining the traffic lane in which she was required to travel, and that as she neared the boys she observed an automobile approaching in the opposite direction, which was brought to a stop only eight feet from the point of impact at the time the impact occurred. Therefore, in view of the foregoing situation, the jury might reasonably have concluded that any attempt on her part to divert her course at that time would have been a dangerous undertaking.

Every one agrees that it is the duty of operators of motor vehicles constantly to keep in mind the probability of encountering other persons using the streets and highways either as pedestrians or motorists; and that where children are observed playing in or near the street, extra precautions should be taken for their safety. Such is the doctrine expressed in all the decisions, and too much cannot be said to that end. And it is a matter of common knowledge that juries and trial courts have not been reluctant to decide against drivers when there was evidence to show they failed to exercise such precautions, nor have reviewing courts hesitated to affirm such judgments. But it does not follow from the fact that a child of the age of discretion darts into the street in front of an automobile and is injured, that the driver of the car is to blame for the accident. Here, from all the evidence before them, the jury and the trial court found that the driver was not to blame, and it is my conclusion that said findings are not without evidentiary support, and that therefore the judgment should be affirmed.

TYLER, Presiding Justice.

I concur: CASHIN, J.