Vorbeck v. Patten-Davies Lumber Co.

CRAIG, J.

While the plaintiff was walking along a public road in Los Angeles County in the evening of October 2, 1920, after dark, she was struck by one of appellant’s

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trucks which was returning to the latter’s place of business after delivering lumber to a customer.

It was Saturday, and none of appellant’s truck drivers were at its yard when this particular load was placed on the truck. One Baldwin was employed to pile lumber and load trucks, which he testified were taken out by the company’s drivers, who were sent from the office. Baldwin was not a driver, was not employed in the office, nor did he do the employing, but was generally under the supervision of a yard foreman, although at the particular time in question he was alone in the yard. A young man named Isherwood, who worked in a bakery next door, came into the yard at about 5 P. M., and assisted in loading the truck ;'Baldwin remarked that he wished the load could be gotten out so that the customers could work Sunday, to which Isherwood replied, “I will take it.” He made the delivery, and before he returned it became dark; the truck was without lights, and Isherwood did not know of respondent’s presence upon the road until she was struck.

At the conclusion of the testimony the trial court instructed the jury that the defendant was liable in this case, and that the only question for them to determine was the amount of damages. A verdict was accordingly returned for the plaintiff, and the defendant appeals from the judgment upon the ground that Baldwin had no authority to employ Isherwood; that the latter was not its employee, and that the lumber company was not liable for the consequences of his acts.

Respondent relies principally upon the r”- " ' distinct causes are operating at the same time to produce a given result, and the original negligence is -______ the accident, and is a contributing cause thereto, and its effect is not broken or disturbed by the intervention of the other cause but is only accelerated or augmented thereby, then either or both parties who created the cause are liable for the damage occasioned thereby. And it is argued that had the truck been equipped with headlights the accident would not have occurred; that this truck was kept by appellant for the purpose of delivering lumber to customers, and that Baldwin was in charge of the yard for the purpose of loading trucks and sending them out to deliver lumber; that he sent Isherwood with the load, and gave him instructions, from which it is inferred that Isherwood was