Bloom v. Allen

TYLER, P. J.

Appeal from a judgment on nonsuit and from an order denying a motion for a new trial in an action for negligence caused by the alleged unskillful operation of an automobile driven by an employee of defendants,

[29]

who are copartners doing business under the firm name of Allen & Doxsee, and also under the firm name and style of the Coast Line Freight and Stage Company. The occupation of the firm is that of carrying and transporting passengers for hire between the cities of Fort Bragg and Point Arena in the county of Mendocino, and between intermediate points to Cazadero, in the county of Sonoma. The evidence shows that on November 23, 1918, one of the stages, as was its custom, tied up at a place called Greenwood for the night. The stage so tied up was sometimes, and as a part of respondent’s business, utilized for short runs or special trips to neighboring points. Upon the evening of the day mentioned, and upon which the accident complained of occurred, the stage regularly arrived at Greenwood. Arrangements had been made several nights previously for the transportation of several young men, one of whom was the plaintiff, to Point Arena. A charge of sixteen dollars for the trip had been agreed upon between the driver and the group, which was neither demanded nor paid. Pursuant to this arrangement the stage, operated by the regular driver of the company, proceeded on its journey, and when some distance out of Greenwood and at the end of a long bridge a slide was encountered in the road, which completely blocked the traffic and made passage impossible until such time as it was removed. Being confronted with this situation the driver turned the stage around, concluding to return to Greenwood. It was then suggested to him by some of the party that they would procure shovels and remove the slide. The driver agreed to resume the journey if this result was attained. The obstruction having been removed by the passengers, two of them walked back to Greenwood and informed the driver of the stage that the road was clear and open. The driver stated that it was too late to make the journey, but he agreed to return to the point where the road had been obstructed and bring the other passengers back to Greenwood, and accordingly set out in the stage upon this mission, accompanied by the two young men who had -walked in. In approaching the point where the slide had occurred it was necessary to cross a bridge of considerable length. The road was muddy and the bridge was wet and slippery There is also evidence to show that the stage