Sullivan v. Barra

YORK, J.

This is an appeal by J. W. Barra, Blanche Schmidt, as guardian of the person and estate of Rudolph Schmidt, Jr., a minor, and Vogue Fixture Company, a co-partnership, from a judgment rendered against them in the sum of $25,000. The copartnership is composed of defendants J. W. Barra and Blanche Schmidt, as trustee for Rudolph Schmidt, Jr., a minor, and is engaged in renting lighting fixtures to moving picture studios and theaters.

It appears from the record before us that at 7:45 in the evening of January 30, 1936, the plaintiff, while attempting to cross West Adams Street from north to south at its intersection with Bronson Avenue in the city of Los Angeles, stopped at the curb on the northeast corner of said intersection and waited for traffic to clear; that an automobile traveling west on West Adams Street stopped at a point five feet easterly of the place where plaintiff was standing and the driver thereof signaled her to proceed in a southerly direction across West Adams Street; that immediately thereafter another car drove up and stopped parallel with the first-mentioned car, whereupon plaintiff proceeded to pass in front of the two standing automobiles. Immediately to the rear of these two cars defendant Arthur F. Barra, an employee of the Vogue Fixture Company, was driving a Ford panel delivery truck in a westerly direction on West Adams Street at a speed of approximately 23 miles per hour; and as he approached the said intersection, said Arthur F. Barra swung his truck to the left into the electric car tracks which traverse West Adams Street at this point, and struck the plaintiff, who by that time had reached the center of the intersection, thereby inflicting upon her injuries of a serious and permanent nature.

Appellants contend that the verdict cannot be sustained upon the theory of agency or

respondeat superior

by reason of the fact that the evidence is insufficient to sustain the finding that defendant Arthur F. Barra, the driver and operator of the truck at the time of the accident, was acting as agent of and within the scope of his employment by the Vogue Fixture Company. In support of this contention appellants maintain that the evidence clearly shows that said Barra at

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