Western Indemnity Co. v. Wasco Land & Stock Co.

JAMES, J.

This appeal is taken from a judgment entered in favor of the plaintiff against the defendant corporation for the sum or $2,727.50. The recovery was awarded because of injuries suffered by one Austin through the alleged negligence of defendant corporation. Austin was employed by a laundry company doing business in and about the city of Bakersfield, and, while engaged in his employment as a driver of a motor vehicle, suffered the injuries for. which compensation was allowed. The plaintiff, Western Indemnity Company, was the insurance carrier for the laundry company employer, and assumed the liability of the latter toward the employee. Upon making such assumption of liability it became subrogated to the rights of the insured, which included the right to bring action against the corporation alleged to have been at fault.

The contentions advanced by appellant in the brief of its counsel are: (1) The verdict of the jury was not warranted by the

evidence;

(2) that the court erred in rulings upon

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the introduction of evidence; (3) that the court erred in its instructions to the jury. A consideration of the first proposition requires a brief statement to be made of the evidence offered in support of the plaintiff’s claim. In the month of January, 1917, an employee of appellant was traveling on a public highway toward the city of Bakersfield. He was in charge of a tractor motor which was propelled by a gasoline engine. To this motor was attached, first, a wagon-load of grain, and behind this an oil wagon, and to the latter a cook-house. The cook-house was built upon a truck platform. As evening came on the engine of the tractor failed to work satisfactorily, and the employee of appellant conducted his train of vehicles to the side of the highway, leaving, however, the left wheel of the tractor upon the paved portion of the highway, the tractor wheels being twenty-eight inches wide. From front to rear the train of vehicles covered a distance of about eighty-five feet. When the train was stopped, as has been noted, with the left wheel of the tractor upon the paved highway, the rear of the train and the left-hand corner of the cook-house projected to a distance of about three and a half feet upon the pavement. The paved highway at that point was of sufficient width only to allow two vehicles' to pass conveniently with a two-foot clearance between. The accident, of which a description follows, occurred at about 7 o’clock in the evening. It was dark and foggy. The employee of appellant had before that time lighted three lanterns, one of which he placed at the top of the engine, one in the middle of the second wagon, and one on the left-hand corner of the cook-house or last vehicle of the train. These lanterns were ordinary oil lanterns and emitted a white light. No colored lights were set on any part of the train.