Perry v. Piombo

WARD, J.

This is an appeal by] plaintiff, a minor, by his guardian

acl litem,

from a judgment entered after a verdict in defendants’ favor in an action for personal injuries. Plaintiff relies for reversal on alleged errors in the giving of and the refusal to give certain instructions. As no claim that the evidence is insufficient to support the verdict is involved, only those facts are stated which are necessary to understand the points raised on appeal.

The plaintiff, a fifteen-year-old boy, was injured when he was struck and run over by the rear wheels of a truck driven by defendant Pearson. The accident happened on the property of the Southern Pacific Company in South San Francisco. The plaintiff had proceeded to the depot with some friends who were to pick up newspapers for distribution. Pearson was driving a twenty-eight foot dump truck, consisting of a truck and trailer attached. He turned to the right from Grand Avenue across the railroad parking lot next to the depot toward the railroad private vehicle way, which paralleled a spur track. The evidence indicates that defendant Pearson intended to turn left across the spur track and park the truck near a restaurant. The plaintiff was walking west across the parking lot. Apparently he was preoccupied with some molding clay which he had in his hand. The other boys were arguing relative to the distribution of the papers. Suddenly one of the boys looked up, saw the plaintiff just about to walk into the side of the truck and shouted “look out.” The plaintiff evidently turned and backed into the vehicle and the rear wheels of the truck ran over him. The truck and trailer, which operated with considerable noise, stopped immediately, with its front end slightly turned across the spur track, when the driver heard shouts that he had run over someone. There is testimony that the truck was not going more than four or five miles an hour, and other testimony that it was traveling twelve or fifteen miles an hour. The driver had been delayed crossing the main line tracks by a train and had just started up across the main tracks and completed the turn into the way paralleling the spur track when the accident happened.

The plaintiff suffered a skull fracture and remembered

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