Kammas v. Karras ( 1922 )

Vinje, C. J.

The trial court granted the nonsuit because no negligence on the part of the defendants was shown. We think it ruled correctly. Fairly construed, the evidence shows that the boy started from the sidewalk at about the time the truck made the turn into Poplar street; that he ran diagonally across the street, and at all times till just about the moment of impact to one side and a little behind the driver. The boy was a nephew of the defendants and had been given rides on the truck a number of times. It is probable that, seeing and recognizing the truck, he started across and after it for the purpose of getting a ride. At any rate it is certain that he approached it from the side and rear, and it is for that reason no one saw him till too late. The driver testified that he was looking ahead and did not see the boy till he was so close to the side of the truck that he could not stop' in timé to save him. The truck was proceeding at a rate of from three to four miles an hour after the turn, the driver stated. This is obviously correct, for several réasons: first, because the boy covered a greater distance than the truck did after the turn was made, and second, the driver intended to take the truck to the garage, the entrance of which was only about thirty feet west of Rhe place of collision and on the north side of Poplar street. Plaintiffs’ witnesses were foreigners and testified m part without interpreters, and in answer to a few leading questions it is made to appear that the boy started across the street before the truck made the' turn, and in one or two places the testimony seems to show that the boy was even in front of the truck when he was struck. But such testimony was negatived when special attention was called to it, and we think the trial court was fully justified in viewing the effect of the testimony as'being in substance • what is set out in the statement of facts.

Under such circumstances we think it can be said as a matter of law that there was no negligence on the part of the defendants. ‘ The boy reached the truck from the side • and the rear and the driver did not see him till the moment of impact. The witness Kramer immediately upon seeing him used every reasonable effort to avoid the collision. The defendant in the truck did not see the boy till the peril was so great that it momentarily stunned him, and the collision occurred before he could do anything. The fact that the boy was seen on or near the sidewalk on the opposite corner as the truck made the turn could not charge the defendants with knowledge that he would attempt to cross the street and overtake the truck. It appears that a reasonable lookout was kept; that the truck was driven at a slow rate of speed, and that no one saw the boy running in such a direction that it was likely that he would collide with the truck till it was too late to save him by the exercise of the highest degree of care. Regrettable as the accident is, the result cannot be charged to the defendants.

By the Court.- — Judgment affirmed.