Muller

Peter Muller, a boy of four years of age, while riding on a sidewalk on the west side of San Pedro Street at its crossing with the alley midway between Fourth and Boyd Streets in Los Angeles, was killed by being crushed-under the right rear wheel of a five-ton oil truck owned by the defendant, Standard Oil Company, driven by defendant Bechtel, an employee. The truck was proceeding easterly out of the alley across the sidewalk and on to San Pedro Streef. The father, John Muller, sues for damages caused to himself by the death of said child, and alleges that the same was due to the negligence of the driver of the truck. Judgment, after verdict for five thousand dollars, was in favor of the plaintiff. Defendants appeal.

The testimony shows, without contradiction, that the truck was being operated very slowly, between three and five miles an hour. The driver testified that he looked up and down the sidewalk and the street and that he sounded his horn when' within thirty or forty feet of the sidewalk; that he did not see the child or know of the accident until some bystander yelled “Stop”; that he stopped within a few feet and found on looking back that the child had been killed. On…

I dissent. Assuming that a case of negligence per se was established against the plaintiff, yet, upon the evidence before us and the finding implied by the verdict of the jury and the denial of a motion for'"a new trial that such negligence did not enter into and form a part of the efficient cause of the injury, such finding should not be disturbed for -the reason that, in my opinion, we would be bound by a finding either way.

Rehearing denied.

All the Justices, except Lawlor, J., concurred.