Goss v. Pacific Motor Co.

KOFORD, P. J.

This is an action for damages for personal injuries sustained by the plaintiff, caused by the negligent operation of a truck driven by the defendant Kadowaki. The truck ran into a large iron post standing embedded in the sidewalk at a street corner in San Francisco. The iron post broke off and fell upon the plaintiff, injuring him. The defendant operating the truck at the time was an apprentice mechanic in the employ of the defendant and appellant, Pacific Motor Company, which conducted a general garage and repair-shop. The other defendant Murai was the owner of the truck. He had left it at the garage

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to be repaired. Judgment was against the driver of the truck, defendant Kadowaki, and also against the defendants operating the garage under the name of Pacific Motor Company. No judgment was given against the other defendant Murai, the owner of the truck. The garage owners, Pacific Motor Company, are the only appellants.

The trial was by a jury and the assignments of error relate in the main to the instructions given, and these in turn relate to the nature and effect of the testimony given at the trial. At the conclusion of the testimony offered by plaintiff, appellant’s motion for a nonsuit was denied. Defendants offered no testimony in their own behalf. There was no direct testimony to show the cause or excuse for the truck running into the post on the sidewalk. The driver was not a witness at the trial. He had returned to Japan on account of the Tokyo earthquake. The testimony related to the conditions existing immediately after the collision. The witness Colen testified that one wheel of the truck rested on the remaining stump of the lamp-post on the sidewalk. Witness Fujimori testified that the truck was facing against the sidewalk but not on it. But there was no dispute that the truck came on to the sidewalk and struck down the lamp-post against the plaintiff. This made a

prima facie

case against Kadowaki. (Berry on Automobiles, 4th ed., sec. 405; Huddy on Automobiles, 7th ed., 512.) Appellants point to testimony that a dent found on the rear of the truck indicated that it had been struck by another automobile immediately before this accident, but this testimony was not sufficient to infer that such an occurrence, if it happened, had anything to do with this accident. There was, therefore, no other inference for the jury to draw except that Kadowaki’s negligence caused plaintiff’s injuries.