Baugh v. Rogers

YORK, P. J. The instant cause has been tried twice. At the conclusion of the first trial a judgment for defendants was rendered, but plaintiff’s motion for a new trial was granted. The order granting a new trial was sustained on appeal by the Supreme Court. (Baugh v. Rogers, 24 Cal.2d 200 [148 P.2d 633, 152 A.L.R. 1043].)

In the instant trial, the jury rendered a directed verdict in favor of defendant Rogers and brought in a verdict for the plaintiff and against defendant Warnock for the sum of $5,000, whereupon a motion for judgment notwithstanding the verdict was granted in favor of defendant Warnock. From the judgment which followed the granting of such motion, plaintiff has perfected this appeal.

The essential facts which form the background of this extended litigation are the following:

Plaintiff was employed by defendant Rogers, a physician and surgeon, who, in addition to living quarters, maintained certain rooms in his residence as an office. Plaintiff, who was [137]engaged by the wife of defendant Rogers to work at the residence by the hour one day each week, did cleaning and other household duties in such parts of the premises as Mrs. Rogers directed. On July 22, 1941, at a time when plaintiff was cleaning the office, she was directed by Mrs. Rogers to go outside on the driveway and close a window in the office, while Mrs. Rogers was holding said window from the inside. While carrying out such directions, plaintiff was struck and injured by an automobile negligently operated by Dr. Rogers. The automobile was owned by defendant Warnock and was being driven with Ms consent.

This appeal is presented upon the clerk’s transcript and an engrossed settled statement (in lieu of reporter’s transcript), the latter document reciting that oral and documentary evidence was offered at the instant trial, which, with the exception of an exhibit and “some additional evidence tending to further establish the status of the driveway, was substantially the same as the evidence introduced at the former trial herein. . . . The evidence so adduced was sufficient to support the verdict of the jury in favor of the plaintiff and against the defendant A. W. Warnock . . . except for the reason as determined by the Trial Court as a matter of law that plaintiff’s injuries were sustained by the operation of a motor vehicle upon private property belonging to the defendant Francis L. Rogers, and that the liability created by section 402 of the Vehicle Code has no application thereto.”