5 P.2d 623 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *434 This is an action brought to recover damages on account of personal injuries alleged to have been inflicted upon plaintiff through the negligence of defendants. After trial by jury, a verdict was returned in favor of defendants. This appeal is taken from the judgment entered upon the verdict.
Respondent Clendenen was the driver of a truck belonging to respondent Service Brothers. Upon the day of the accident, the latter were engaged in hauling material to be used in road construction in Stanislaus County. The driver had procured a load of material, and had hauled it to the scene of the occurrence, where it was his duty to unload it by dumping. The said driver stopped about fifty feet from the place of deposit, and waited for a signal to back and unload. This signal was given him, and he proceeded to back, at the rate of about a mile an hour. He heard a cry, and stopped immediately. Upon investigation, he found plaintiff lying upon the ground near the rear of the truck, with his foot crushed. According to plaintiff, there was some oil on the road, under a disabled truck, which was standing in the highway. "I was trying to clean up under the truck," he testified. "I put the broom underneath the truck and pulled the stuff out toward me. I was in the act of doing that when the truck backed into me." The exhaust of the truck made a loud noise when it started *435 back. Plaintiff was an experienced road worker, and knew that this truck would back to dump its load. The driver was unable to see Ramos from his cab, and he did not see him working under his truck, or around it. He kept his eyes upon the signal man, who stood some distance to his rear.
A reversal is sought upon error in giving the following instructions:
[1] As to the first instruction, it is claimed that no instruction was given which defined "preponderance of evidence", and, therefore, the language "produce conviction" was misleading. The instruction follows literally the language of section 2061 of the Code of Civil Procedure. It does not purport to define "preponderance of evidence". If such a definition was desired by plaintiff, he should have submitted it to the court in an instruction. It must be presumed that, prior to the giving of any testimony, this instruction was served upon plaintiff. (Sec. 607a, Code Civ. Proc.)
[2] The second instruction is attacked because of the use of the word "directly" in the last sentence thereof, instead of "proximately". It has been decided that these words are almost identical, and that it was not reasonable to suppose that the jury would perceive any difference between them. (Olsen v.Standard Oil Co.,
[3] It is next contended that the third instruction is erroneous, in that momentary forgetfulness of the danger, if found by the jury to have been the proximate cause of the injury, would preclude recovery by plaintiff. In support of this contention, appellant cites Smith v. Southern Pac. Co.,
[4] The fourth instruction is questioned because it omits the question of proximate causal connection between negligence and injury. An examination of the record discloses that this question was fully covered in other instructions.
[5] The fifth instruction is attacked upon the ground that the jury are told that the driver was not required to use ordinary care and vigilance. We do not so construe it. It simply states that the driver had the right to assume that plaintiff would use ordinary care. The jury were elsewhere instructed in the language of California Vehicle Act, section 130 (Stats. 1925, p. 412, sec. 15a), that it was the duty of the driver before starting the truck to himself see that such movement could be made in safety, and that if he did not comply with this provision he was guilty of negligence. We cannot see how the jury could have been misled by this instruction.
[6] Instruction six is attacked because negligence is not there defined. We find it was fully defined elsewhere.
[7] Instruction seven is questioned because it assumes, as a fact, that a flagman was guilty of negligence. There is absolutely no ground for that assumption. It is complained that the instruction does not mention negligence upon the part of the driver. There is no reason why it should. If the negligence of a third party caused the injury, certainly defendant could not be held responsible. It *439 is true that the instruction does not state that the negligence must be the proximate cause of the injury, but the jury were elsewhere told that a negligent act must have contributed directly to the injury, otherwise no action for damages could be founded upon it.
Objections to the last instructions do not require any extended discussion. They are specious in character.
An examination of the entire record discloses that the jury were fairly and fully instructed upon all the issues of the case. If appellant had read the instructions as a whole, instead of taking them piecemeal, it is very doubtful if the appeal would have been prosecuted at all.
The record is free from error, and accordingly the judgment is affirmed.
Plummer, J., and Preston, P.J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 19, 1931, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 18, 1932.