Smith v. Johe

DRAPER, J.

Plaintiff appeals from judgment for defendants entered upon the verdict of a jury. Plaintiff-appellant walked across the intersection of Union and Leavenworth

[510]

Streets in San Francisco at about 9 :30 p. m. Respondent Johe drove an automobile owned by his employer uphill along Union Street and started a left turn into Leavenworth. There the car struck appellant.

Appellant first argues that the verdict is without support in the evidence. But there was a conflict in the evidence as to whether appellant was within or without the unmarked crosswalk. It is unnecessary to cite authority for the oft-repeated rule that conflicts in the evidence are for the trier of the facts, and not for an appellate court. The jury could have found contributory negligence on the part of appellant.

Appellant’s complaint stated two causes of action against the respondent employer, one based on the theory that the driver was acting in the course and scope of his employment, and another on the theory of permissive use. (Veh. Code, § 402.) After all evidence was in, respondent employer moved for a directed verdict as to the first cause of action. This motion was granted. However, the respondent employer conceded that the automobile was driven with its permission, and the jury was properly instructed as to the liability of respondent employer under Vehicle Code, section 402. Appellant assigns as error the granting of the directed verdict as to the count based upon

respondeat superior.

It is conceded that the car which struck appellant was owned by respondent employer, and that its driver was an employee of that respondent. The only testimony as to the nature of the driver’s employment and of his activity at and immediately before the accident was that of the driver. He testified that he was an estimator for respondent employer, a contractor. The employer furnished him an automobile which he was permitted to drive between his home and work. His work often required him to go direct from his home to a job. He was allowed to use the company car for personal purposes. He testified that on the evening in question he had completed his work, driven home, had dinner, gone to see a friend upon a wholly pers.onal errand, and was returning from that visit when the accident occurred. The facts that respondent Johe was an employee of respondent corporation and was driving a ear owned by it raise an inference that the driver was acting in the course and scope of his employment.