Yates v. J. H. Krumlinde & Co.

DOOLING, J.,

pro tem.

This is an appeal by defendants from a judgment for personal injuries entered pursuant to the verdict of a jury.

[389]

Plaintiff and respondent had previously been employed by appellant J. H. Krumlinde & Company, a copartnership, and on August 7, 1934, he went to the plant of the copartnership in San Francisco, seeking reemployment. He was not employed that day but rode to South San Francisco with appellant Lotti, one of the members of the copartnership, upon a truck driven by Lotti and in South San Francisco received the injuries for which judgment was entered in this action.

One of the defenses was that respondent was a guest within the meaning of section 141% of the California Vehicle Act. (Stats. 1931, p. 1693.) The evidence was in flat conflict as to the circumstances preceding respondent’s going with Lotti on the truck and what occurred thereafter. Respondent testified that he had helped Lotti load the truck; that when Lotti was about to start for South San Francisco, Lotti said to respondent: “Do you want to take a ride to South City?” to which respondent answered: “Yes”; that on the way to South San Francisco at Lotti’s request respondent helped Lotti unload some shingles from the truck; that when they arrived at the plant of the Edwards Wire Rope Company, where the balance of the load was to be delivered, Lotti asked respondent to guide him through some gates and around a tank and while respondent pursuant to this request was on the running board of the truck one of the gates swung against respondent’s leg causing the injury complained of.

Lotti on the other hand testified that respondent did not help him load the truck; that he did not ask respondent to ride with him to South San Francisco, but on the contrary, respondent said: “I think I will take a ride,” to which Lotti answered: “O.K. Let’s go”; that respondent did help Lotti unload some shingles en route but that Lotti did not ask him to do so; and that Lotti did not ask respondent to help him through the gates and past the tank.

The court refused an instruction proposed by appellants in the following language:

“You are instructed that if you believe from the evidence that the plaintiff, Walter Yates, rode on the automobile truck of the defendants solely for his own pleasure and benefit, and any help or assistance that he may have given to the defendants or either of them was volunteered by the plaintiff, then you are instructed that the plaintiff herein was a guest