Humphrey v. United States MacAroni Co.

CONREY, P. J.

The defendant appeals from a judgment rendered in favor of the plaintiff for the sum of $5,635 on account of alleged negligence of the defendant in. the operation of its automobile at the intersection of Lyons and Ramirez Streets, in the city of Los Angeles, on the third day of October, 1918.

Appellant contends that the findings are not sustained by the evidence in this, that there is no evidence showing that defendant owned the automobile or that the person driving it was in defendant’s employ or was acting in any way for the defendant. The complaint alleged that “while plaintiff was walking carefully along on the sidewalk of the northerly side of Lyons Street, at or near the intersection of Ramirez Street, which are public streets in the city of Los Angeles, state of California, the aforesaid automobile of the defendant herein, while being driven and propelled by the aforesaid driver and employee of said defendant herein, was so negligently and unlawfully operated that it overturned upon and over plaintiff and violently struck and threw down plaintiff herein while he was on the said sidewalk at or near the aforesaid intersection, and injured him as hereinafter set out.” The answer on

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that subject is as follows: “Admits that on or about Oe-. tober 3, 1918, defendant herein had a person in its employ whose duties were to drive an automobile for the defendant; but denies that on October 3, 1918, while plaintiff was walking carefully along or on the sidewalk of the northerly side of Lyons Street, at or near the intersection of Eamirez Street, in the city of Los Angeles, the automobile of the defendant was driven of propelled by the driver thereof, or any employee of the defendant, negligently or unlawfully, or that the same was so negligently or unlawfully operated that it overturned upon or over plaintiff, or violently struck or threw down plaintiff while he was on the sidewalk, or at or near the aforesaid intersection, or that plaintiff was thereby injured.” This answer in effect admits that defendant’s automobile was being driven by defendant’s employee and as such employee, at the time and place indicated. The only denial is that the driving of the automobile by defendant’s employee was negligent or unlawful, or so negligent or unlawful that the automobile was overturned upon the plaintiff, to his injury, etc. On the issues thus limited, it was not necessary for the plaintiff to introduce evidence to prove that the defendant owned the automobile or that the driver was in the defendant’s employ.