MARTIN CONTINENTAL CASUALTY CO v. CLINTON CONST CO (1940)

The petition for rehearing is denied. The defendant quotes from our opinion [105 P.2d 1029, 1032]: “While doing so he was led to the spot where the accident happened. Nearby stood a pole on which the wires were supported which served the vibrators. As he passed that pole the plaintiff paused to inspect conditions at that point. However, McCloy walked on. While the plaintiff was inspecting said pole, the defendants suddenly” etc. It then claims we have misstated the record. We think not. Plaintiff's Exhibit A is before us. It is drawn to scale. The evidence of the plaintiff, as shown by his marks on that exhibit, is that when he paused a few seconds he was 32 feet from the pole and was facing east. He then turned and walked 35 or 40 feet to the west. There the accident happened. Obviously our statement, quoted above, was not inexact when, it will be remembered, we are dealing with the area of an island containing many acres.

It is likewise clear that said passage contained nothing tending to make erroneous anything said in our opinion on contributory negligence or assumed risk.

The defendant also contends that we were in error in holding that the entry of judgment in favor of the plaintiff was not prejudicial error. Its contention is based on the fact that the only showing as to medical expenses consisted of a portion of the award of the Industrial Accident Commission which was introduced in evidence by the plaintiff in intervention. But at no time did the defendant ask for an order limiting the effect of that evidence. Therefore, it may not do so now. 10 Cal.Jur. 816. Such rule is of much importance when actions are brought and defended under the provisions of sections 3850–3862 of the Labor Code, St.1937, pp. 273–275.

PER CURIAM.