Perin v. Nelson & Sloan

MUSSELL, J.

This is an action for damages for personal injuries sustained by plaintiff when a truck operated by one of the defendants’ employees was backed onto plaintiff’s foot. At the time of the accident plaintiff, who was a cement finisher, was engaged in smoothing and finishing a slab of cement which had been poured from defendants’ transit mix truck. The area being poured was about 20 feet square. Plaintiff was on his knees at the south edge of the square reaching out to the north as far as he could, his feet approximately 24 inches from the cement, when the driver backed the truck onto plaintiff’s left foot, imbedding it in the ground and injuring it. Plaintiff heard the noise of the truck and an order to “back it up,” but he was intent on his work and did not see the truck when it was being backed.

The driver testified that after he had poured cement in the east side of the square, he was told to back up; that he then backed his truck slowly; that as he started backing, he saw plaintiff smoothing off the cement and “figured he had plenty

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of room to back up”; that it appeared to him that plaintiff was out of range of the wheels; that during all the time he was backing, he was watching plaintiff; that plaintiff was then on his knees on the ground smoothing the cement and did not look up at him.

The cause was tried before a jury and a verdict was returned in favor of plaintiff. Defendants appeal from the judgment thereupon entered.

While defendants state in their brief that a reversal of the judgment is sought on the grounds that the evidence is insufficient to sustain the judgment and that plaintiff was guilty of contributory negligence as a matter of law, their argument is directed to the contention that the trial court committed prejudicial error in instructing the jury on the doctrine of last clear chance.

The elements of this doctrine are set forth in

Daniels

v.

City & County of San Francisco,

40 Cal.2d 614, 619 [255 P.2d 785], where it is said: