Crowe v. McBride

GIBSON, C. J.

Plaintiffs, husband and wife, brought this action for damages for personal injuries suffered by the wife (hereinafter called plaintiff) from the “explosion” of an electric therapeutic light bulb. Defendant, a licensed chiropractor, had been treating plaintiff for arthritis and neuritis over a number of years. The treatment consisted in part of exposure to the rays of certain therapeutic lamps in defendant’s office. While taking one of these treatments plaintiff lay on a table with her back bared and exposed to a lamp which defendant had fixed in a position about two and one-half feet, above her. Defendant then left the room, leaving plaintiff unattended. After she had been under the light about fifteen minutes, the bulb broke or exploded without warning, the hot glass falling upon plaintiff’s back and other parts of her body causing severe injuries.

At the close of plaintiffs’ evidence a motion for a nonsuit was granted on the ground that plaintiffs had failed to prove negligence. Plaintiffs appealed from the judgment, contending that the evidence was sufficient to permit a finding of negligence.

In considering the propriety of the nonsuit, we must accept the evidence most favorable to plaintiffs and disregard that which is unfavorable. The testimony of the defendant, who was called to testify under section 2055 of the Code of Civil Procedure, falls within this rule and is to be treated as evidence in the case insofar as it is favorable to plaintiffs.

(Anderson

v.

Stump,

42 Cal.App.2d 761 [109 P.2d 1027];

Dempsey

v.

Star House Movers, Inc.,

2 Cal.App.2d 720 [38 P.2d 825];

cf. People

v.

Mahoney,

13 Cal.2d 729 [91 P.2d 1029] [motion for directed verdict]

; Smellie

v.

Southern Pacific Co.,

212 Cal. 540 [299 P. 529].)