McCole v. Merchants Express Corp.

NOURSE, P. J.

Plaintiffs sued for personal injuries, and defendants had a verdict. The trial court granted plaintiffs’ motion for a new trial upon the ground that the evidence was insufficient to justify the verdict. The appeal is from that order.

Plaintiff, a boy of about nine years, while sitting on a garbage can on the sidewalk area was struck and injured by a heavy roll of paper which had fallen off defendants’ truck which was passing along the street. No witness testified to any negligent loading or operation of the truck, and the cause of the accident was left unexplained except for defendants ’ testimony as to the manner of loading the rolls of paper on the truck before it left defendants’ place of business. The driver was shown to have had no part in the. loading or care of the load—his single duty was to drive the truck which had been loaded for him by other employees of the defendant corporation.

The principal question involved here is whether there was any evidence which would have justified a verdict for the plaintiffs. They rest upon the doctrine of

res ipsa loquitur,

the instruments causing the injuries having been in the exclusive possession and control of the defendants. It is conceded that this theory justifies the order if, under the pleadings and facts of this case, the doctrine is applicable. The complaint pleaded in general terms the negligent operation

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and control of the truck. It also pleaded in specific terms the negligent failure to secure and tie the paper rolls on the truck. The

res ipsa loquitur

doctrine is available to a plaintiff who pleads negligence in general as well as in specific terms.

(McComas

v.

Al. G. Barnes Shows Co.,

215 Cal. 685 [12 Pac. (2d) 630].) We followed this rule in

Porter

v.