Christiana v. Rattaro

NOURSE, P. J.

The mother of an eight-year-old boy sued for damages for his wrongful death. The jury returned a verdict for $10,448.96. The defendant appealed from the judgment and from the order denying the motion for a new trial.

The defendant was engaged in the produce business and was in the habit of allowing small boys to assist him in unloading watermelons from freight cars, compensating them with cracked melons, ice cream and occasionally small sums of money. On the day of the accident defendant was taking deceased and four other small boys to his place of business to help him unload melons. The defendant drove his truck along a street lined with trees, from which an overhanging branch struck the boy on the head, causing injuries from which he died. There is no contention that defendant did not know the danger of the overhanging branches of the trees, that he did not know the habit of the boys to stand in the body of the truck, and climb up on the projections on the side of the truck, that he could not have taken the smaller boys into the cab of the truck, or that he could not have driven closer to the middle of the street free from the overhanging trees.

On his appeal from the judgment the appellant urges that the trial court erred in denying his motions for a nonsuit and for a directed verdict. If the judgment is affirmed these motions fall with it. Five grounds of attack are made upon the judgment, which we will take in order.

1. It is argued that deceased was a guest within the meaning of section 403 of the Vehicle Code. The point rests on a conflict of the evidence—whether the original purpose of the trip was to take the boys to the location where

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they could help appellant unload the melons, or whether it was a ride for fun only. The jury believed the evidence supporting the first purpose and this brings the case within the rule of

McCann

v.

Hoffman,

9 Cal.2d 279, 286 [70 P.2d 909] and

Yates

v.