Mills v. Los Angeles Junk Co.

ROTH, J.,

pro

tem.

Appellant alleged that he was injured in respondent’s place of business by reason of the negligence of respondent in so operating one of its presses that a bale of paper was blown therefrom, violently striking appellant and throwing him to the ground. The case was tried before a jury. The jury found for defendant. From the judgment entered on the verdict of the jury and from an order denying a motion for a new trial plaintiff prosecutes this appeal.

An appeal, of course, will not lie from an order denying a motion for á new trial. (Code Civ. Proc., sec. 963, subd. 2.) We will, therefore, consider only the appeal from the judgment.

It is unnecessary to detail the facts which gave rise to the accident, as the pivotal question upon which this appeal turns is not dependent upon or related to a recitation of these facts.

The primary question raised by appellant is that the court should have given an instruction which he claims he requested on the subject of

res ipsa loquitur.

Respondent’s answer to this contention is twofold: First, that it was not requested; and, second, that it would have been error for

[548]

the trial court to give such an instruction if it had been requested. Respondent’s first answer is conclusive.

The record on appeal nowhere indicates a request for the proposed instruction. Indeed, the only place in the record on appeal in which the asserted context of the proposed instruction appears is in an affidavit of one of the trial jurors, which, on motion of respondent, was stricken from the files, together with the affidavits made by some of the other trial jurors.

The order striking these affidavits from the files is a “special order made after final judgment” (Code Civ. Proc., sec. 963, subd. 2), and is an appealable order.

(Gay

v.