Newman v. Steuernagel

BARNARD, P. J. The respondents have moved to dismiss this appeal, or to affirm the judgment, upon the [186]grounds, among others, that the points here raised having been decided adversely to appellant on a former appeal have become the law of the case and that the questions involved are so unsubstantial as not to need further argument.

This action was brought to recover damages for personal injuries suffered by the appellant when he was struck by an automobile which was being moved by one Andreola, who had been left in the car by Steuernagel when he double parked the same in order to go into a garage on business. A jury returned a verdict in favor of this appellant and the judgment was reversed. (Newman v. Steuernagel, 132 Cal. App. 417 [22 Pac. (2d) 780].) The facts are rather fully stated in that opinion and need not be here repeated. Upon a second trial the motion of these respondents for a non-suit was granted and from the ensuing judgment this appeal was taken.

In his opening brief the appellant argues that the case should have been submitted to the jury because certain new evidence, taken in the light most favorable to appellant, is sufficient to show that Steuernagel’s negligence in parking the automobile was the proximate cause of the accident and that Andreola, in moving the car, was acting as a servant in carrying out his duty to his master.

Leaving out certain statements not justified by the'record, the only new evidence relied upon and called to our attention in the opening brief, which could have any bearing on the case, may be summarized as follows: Steuernagel testified that during the winter preceding the accident which occurred on April 14, 1930, he rode in a “Model A” Ford driven by Andreola on four or five occasions; that on one occasion, the time of which is not given, he was talking with Andréola about shifting gears and then told him that the gear shift on the “Model A” Ford was the same as that on the Pontiac; that he did not explain to Andreola about the operation of the starter, ignition or brakes on his own car, which was a Pontiac; that there were no valuables in his car at the time he double parked the same and left Andreola in it; and that just before the accident occurred he heard Andreola call to him. In reference to this he testified: “Q. Mr. Steuernagel, after hearing Mr. Andreola call, ‘Bill’, how long was it before you started out? A. Well I couldn’t say just how long; it was more than—I should say from one to [187]