Burch v. Levy Bros. Box Co.

ARCHBALD, J.

pro

tem.

Plaintiff, respondent herein, was injured while standing on the sidewalk opposite a forty foot red zone marked on the curb, and about twenty inches back from the curb, in downtown Los Angeles, when he was struck by the right rear end of defendants’ truck as it was backing up to the curb on an angle that brought the right rear wheel in contact with the curb some distance ahead of the left wheel. The truck was equipped with a stake body loaded with tiers of wooden boxes which shut off all view through the rear window of the cab; there was a rear view mirror on the left door of the cab. The rear end of the bed of the truck extended about four feet ten inches back of the rear tires.

The driver of the truck, who was acting in the course of his employment by the other defendants, who owned the truck, sounded his horn twice as he started to back the truck; the horn made a “good loud noise.” The inside muffler on the truck had been taken out and the exhaust was audible for about 75 feet. The truck was backed at a speed of about one mile per hour and the driver did not know that he had struck anyone.

Prom a judgment in plaintiff’s favor defendants have appealed, urging that the court erred:

1. In refusing to strike testimony as to the amount of nursing expense in the absence of evidence of the reasonable value of such services; and,

2. In refusing to declare a mistrial for cited misconduct of plaintiff’s attorney.

[106]

1. Prior to plaintiff’s injury, his wife had suffered an injury resulting in the breaking of two shoulder blades, which limited the use of her arms, and which required her to have constant assistance. The plaintiff himself had rendered such assistance before his injury, and in his complaint he alleged special damages in the sum of $605, for his alleged employment of a practical nurse and housekeeper to take care of himself and wife. The judgment entered on the verdict of the jury was in the lump sum of $5,312.50.

Respondent employed his niece to take care of his wife and to do the housework when he was in the hospital; also, to perform the same work for himself and wife while he was confined to his bed at home.