Martinovic

Plaintiff has appealed from a judgment, based upon a jury verdict, favoring defendants in his action for personal injuries incurred when he was run over by a cement truck. He contends: (1) that the truck-driver was negligent as a matter of law; (2) that he himself was not eontributorily negligent as a matter of law and the court erred in instructing the jury on this issue; (3) that the court failed to instruct on all theories of his case; (4) that the court erred in admitting evidence of the truckdriver’s state of mind as to the whereabouts of plaintiff, and in giving an instruction thereon; and (5) that the court erred in instructing the jury on the standard of conduct required of the truckdriver.

At the age of 5 years and 2 months plaintiff, Frank Martinovic, Jr., was run over by a cement truck operated by defendant Richard S. Ames, and owned by defendant Ferry Brothers Material Co. Ames had delivered a load of cement to a home in an unincorporated San Diego County residential area. He then stopped across the street in front of a home owned by Mr. and Mrs. Grunloh to wash the cement chutes attached to the back of the truck. For this purpose the truck was equipped with a hose…