Adams v. Wiesendanger

JAMES, J.

Plaintiff was awarded judgment for damages for personal injuries which were alleged to have been sustained by reason of an automobile belonging to the defendant having collided with the person of the plaintiff. The appeal is from the judgment and from an order denying a motion for a new trial.

It was admitted at the trial that the automobile, the operation of which caused plaintiff’s damage, was owned by the defendant, and in the bill of exceptions it is stated that there was evidence to show that the automobile was being negligently operated at the time of the accident. The undisputed evidence showed further that the chauffeur in charge of the automobile at the time of the accident was under monthly employment with the defendant. The chief dispute was as to whether at the time the accident occurred the chauffeur was performing any of the duties of his employment or acting within the scope thereof. The defendant testified that th'e day of the accident was a holiday and that on the night preceding he had been out with the car and that when he was brought in by the chauffeur he gave the latter direction that, as the next day was a public holiday, the chauffeur was not to work, but that he was to then take the car to the garage

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and leave it there and spend the next day as he pleased; that he, the defendant, had no knowledge of the car having been removed from the garage on the day of the accident until several hours after plaintiff had been injured. Defendant further testified as to the general instructions which he had given the chauffeur, which were that he was in no case to use the car for his own purposes, but was always to return it to the garage at a certain apartment house owned by defendant and deliver the key of the garage to the manager of the apartment house, 'who was an employee also of the defendant and had supervisory authority over all employees about the premises. He further testified that there were two entrances to the garage; one a very steep and unsafe one leading onto 8th Street in the city of Los Angeles, and another and better one leading onto 7th Street; that he instructed the chauffeur not to use the 8th Street entrance, but to always come in and go out by way of 7th Street; that he did this because the 7th Street entrance not only was safer, but because also the chauffeur could always be observed when he came in or went out by that entrance by the manager of the apartment house. The evidence showed that the chauffeur did return on the holiday and took the machine out of the garage, stating that he did so for the purpose of washing it. In doing so he drove the machine into a pit on the premises and injured it. With the assistance of the manager of the apartment house and the gardener, one Dawson, the car was lifted out of the pit. The manager of the hotel was not allowed to state, upon objection being made, as to what instructions he gave the chauffeur after the machine had been lifted out of the hole, although his authority to speak for his master, this defendant, had been fully established by evidence previously heard in the case. Dawson, the gardener, did testify that he heard the manager tell the chauffeur to put the machine in the garage and" leave it there, but this testimony was stricken out upon motion. At the time of the latter ruling the authority of the manager to speak for the defendant, had not been established, and the objection to that testimony as made at that time was properly sustained. However, the court erred in not allowing the servant who had direct supervision over the chauffeur to tell what instructions he gave him immediately after the car was taken from the pit. Dawson further testified that after the car had been righted the dam