Frierson v. Pacific Gas & Electric Co.

BURNETT, J.

The action was for personal injuries received by plaintiff while a passenger on a street-car in the city of Sacramento. Plaintiff’s injuries resulted from a collision between said street-ear and a passenger automobile stage operating between Sacramento and Placerville and

[398]

driven by one Balderson. The complaint alleged that the accident was caused by the joint negligence of the driver of the stage and the motorman in charge of the street-car and that the stage was being operated by defendant Richardson. The case was tried before the court without a jury and the Pacific Gas & Electric Company was acquitted of all negligence, but it was found that the stage had been negligently operated by appellant Richardson. Judgment followed against him in favor of plaintiff for three thousand dollars.

Appellant does not .contend that the stage was not negligently operated or that plaintiff’s injuries were not caused by said negligent operation, but his sole contention is that said stage was being operated by the Star Auto Stage Association, a co-operative business association. Respondent contends that there are two conclusive answers to appellant’s contention: First, the evidence is sufficient to sustain the finding that Richardson was operating the stage, and, second, if the stage was being operated by said association, it was operating it for the use and benefit of Richardson and as his agent, and, therefore, he is personally responsible for its negligent operation.

[1]

As to the first consideration it may be stated that it was admitted at the trial that Richardson was the owner of the stage and from this fact the presumption arises that the driver was the agent of the owner.

(McWhirter

v.

Fuller,

35 Cal. App. 288 [170 Pac. 417];

Dierks

v.

Newsom,

49 Cal. App. 789 [194 Pac. 518];