Souza v. Market Street Railway Co.

STURTEVANT, J.

The plaintiff was a passenger on one of the cars operated by the Market Street Railway Company. A collision occurred between Engine No. 14 of the regular fire department of San Francisco and Fire Patrol No. 2, operated by Underwriters’ Fire Patrol of San Francisco, in such a manner that Engine No. 14- was thrown against the street-car and the plaintiff was injured. He commenced this action and made the Market Street Railway Company one of the defendants and he also made the Underwriters’ Fire Patrol of San Francisco another defendant. The trial court granted a motion for a nonsuit in favor of the Market Street Railway Company and it granted ' a motion for judgment on the pleadings in favor of the Underwriters’ Fire Patrol of San Francisco. The plaintiff appealed. We will take up the appeal as to the defendant the Market Street Railway Company first and the appeal as to the Underwriters’ Fire Patrol of San Francisco will be considered later.

[349]

The plaintiff contends that the trial court erred in granting the defendant’s motion for a nonsuit. That company replies that the record does not present the question. It shows that the motion was made on February 25, 1929, and that on that date the court made a minute order granting the motion and that the minute order was at that time entered by the clerk. It shows also that a judgment was “Recorded Feb. 26, 1929, 1:30 o’clock P. M. Vol. 294 page 396” and “Judgment entered 3/21/29.” It is headed “Minute Order In Open Court, Monday, Feb. 25th, 1929.” But, in form, it is the ordinary judgment for costs and recites

verbatim

the minute order first mentioned. Continuing, it shows that the plaintiff appealed from that formal judgment, whereas it should have appealed from the minute order. There is a great deal that can be said in favor of this contention.

(Brown

v.

Sterling Furniture Co.,

175 Cal. 563, 564 [166 Pac. 322];

Carton

v.

Superior Court,