Flynn v. Wallace

NOURSE, J. pro tem.* This is an action to recover damages for personal injury. The defendant Wallace appeals from a judgment based upon the verdict of the jury in favor of plaintiff.

The sole ground for the appeal is the refusal of the court to give an instruction requested by the defendant.1

We have reached the conclusion that the judgment must be affirmed.

The Pleadings

By his complaint plaintiff alleged that he was a passenger in a certain Dodge vehicle which was proceeding in a westerly direction on Glenoaks Boulevard in the process of making a left-hand turn to go south on Central Avenue in the city of Glendale; that at that time the defendant Wallace operated his vehicle in an easterly direction on Glenoaks Boulevard in [594]sueh a careless and reckless manner as to cause it to collide with the vehicle in which the plaintiff was then riding causing plaintiff to sustain certain injuries, disabilites and damage. By his answer appellant Wallace denied negligence on his part and as an affirmative defense pleaded that plaintiff and one Buzzell were engaged in a common and joint enterprise at the times and places mentioned in the complaint and that each had the right to control the operation of the automobile; that Buzzell operated the automobile in which the plaintiff was riding in a careless and negligent manner and that his negligence contributed to and proximately caused the injuries and that, therefore, plaintiff was barred from recovery. As a second affirmative defense he pleaded that plaintiff was himself guilty of contributory negligence.

The Facts

It is unnecessary to recite in detail the facts as to the manner in which the accident occurred for it suffices to say that there was substantial evidence that both Buzzell and Wallace were negligent and that the negligence of each proximately contributed to the accident.

The evidence showed that Buzzell was in the general employ of the plaintiff Flynn; that on the evening prior to the accident Flynn requested Buzzell to pick him up and drive him to work and the accident occurred during the hours of Buzzell’s employment and while the plaintiff and Buzzell were on their way from Flynn’s home to his place of business; that in connection with the time at which he was to pick up Flynn on the morning of the accident Buzzell stated that that time was fixed by Flynn because he was the boss. From this evidence the jury might have found that Buzzell was acting as agent or employee of the plaintiff Flynn at the time of the happening of the accident.