Stoddard v. Fiske

RICHARDS, J.

In an action brought by the plaintiffs, husband and wife, against the defendants for damages for personal injuries suffered by the wife, they recovered judgment against the defendant Fiske, but as to defendant Nixon judgment was rendered in his favor and against the plaintiffs. From that part of the judgment in favor of Nixon and against themselves the plaintiffs prosecute this appeal.

The facts of the case are substantially these: Some time in the month of September, 1913, three gentlemen, two of whom were Fiske and Nixon, the' defendants in this action, were standing in front of the St. Francis Hotel with another gentleman, Mr. Travers, who was the president of the Taxicab Company of California at that time—a company which operated several automobiles in that region. One of the machines of that company was devoted to the personal use of its president and was standing in the street near 'the hotel. These three gentlemen were friends of Mr. Travers, apparently, and while they were standing there he asked them if they wished to take a ride. Evidently they did, and he told them, pointing to his machine, that it was at their disposal. Apparently he knew them well enough to know that both of these defendants knew how to operate the automobile, and his remarks were addressed not to any one of them but to all three of them. They all proceeded to the car, and Mr. Nixon, for the time being, took the wheel and drove the car. While they were riding about the city the party was stopped by a policeman, and Nixon, the driver of the car, was arrested for speeding, and the party taken to the Bush Street police station. Nixon offered to give the arresting officer $20 for bail in order to secure his release, but the arresting officer informed him that he could not take the money or could not release him, and that he must

go

to the Central station and make his deposit there in order to obtain his release. He declined to allow Nixon, however, to go there alone for that purpose, whereupon Fiske offered, or Nixon requested him—■ it is immaterial which—to go there, and accordingly he took the automobile and went. While he was returning from his errand, having secured the order for the release of Nixon, he

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ran into and injuréd Mrs. Stoddard, one of the plaintiffs in this case, Nixon at that time not being in the car but being at the Bush Street police station awaiting the return of his friend. This action was brought, as we have said, by the plaintiffs to recover damages for the injuries suffered by Mrs. Stoddard in said collision. A motion for nonsuit in behalf of Nixon was made at the close of plaintiffs’ case, which was denied, but at the conclusion of the entire testimony a motion was made for a directed verdict in favor of said defendant, and that motion the court, with all of the evidence in the case before it, granted, and directed a verdict in favor of Nixon. It is from that order and from the judgment in his favor thereupon made that the plaintiffs appeal, claiming that they were entitled to a verdict against Nixon, and that the court erred in taking the case in that manner from the jury.