3 P.2d 622 | Cal. Ct. App. | 1931
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *141 Joseph L. Bezera, while riding as a passenger for hire in a taxicab, received fatal injuries in a collision between such taxicab and an oil truck; the collision occurring at the intersection of Fifteenth and Howard Streets, in the city of San Francisco. His widow, as administratrix of his estate, brought this action to recover damages for his death against The Associated Oil Co. (hereinafter called the Oil Company), the owner of the oil truck, and its employee W.T. Gay, the truck driver; and also against Red Top Cab Co. (hereinafter called the Cab Company), the owner of the taxicab, and its employee William Chene, *142 the taxicab driver. After trial, the jury returned its verdict awarding damages against the Cab Company and its employee, but absolving the Oil Company and its employee from liability. The Cab Company and its employee appeal from the entire judgment rendered on such verdict, and the administratrix appeals from that portion of such judgment which absolves the Oil Company and its employee from liability.
[1] The Cab Company and its employee argue: 1. That quoted portions of the testimony conclusively establish that the truck driver, in making a left turn at the intersection, was negligentper se because it conclusively shows that he drove on the wrong side of Howard Street, failed to yield the right of way to the taxicab, cut the corner and a traffic button, in violation respectively of sections 122, 131 and 129 of the California Vehicle Act and sections 14 and 15 of Traffic Ordinance Number 8492, new series, of the city and county of San Francisco. 2. That such testimony further conclusively shows that such negligence was a proximate cause of the accident. 3. That therefore the verdict, by absolving the Oil Company and its employee from liability, is contrary to law and the evidence. However, other portions of the testimony quoted by the other parties raised a conflict on these issues, as to which the verdict is conclusive. (Dougherty v. Ellingsen,
The court instructed the jury "that a common carrier of passengers for hire is required to exercise the highest degree of care and diligence in their safe transportation and is responsible for the death of a passenger, without fault on his part, which death might have been avoided by the exercise of such care. Hence, when it is shown that the death of a passenger for hire was caused by the act of the common carrier in operating the instrumentalities employed in its business, there is an inference of negligence, which throws *143
upon the common carrier the burden of showing that the injury was sustained without negligence on its part." The Cab Company contends that this instruction is legally erroneous: 1. Because it is not a common carrier. 2. Because this instruction, in connection with others, advised the jury it was an insurer of the passenger's safety. 3. Because it applied the doctrine of resipsa loquitur. 4. Because it is deficient in failing to define the "highest degree of care and diligence". [2] A taxicab company, holding itself out to serve those who apply for transportation, is a common carrier and as such is held to the highest degree of care, and the doctrine of res ipsa loquitur
is applicable in an action by the passenger. (See extended notes in 4 A.L.R. 1501; 31 A.L.R. 1206; 45 A.L.R. 303; 69 A.L.R. 992.)[3] The answer of the Cab Company, by failure to deny, admits that it was engaged in the business of carrying passengers for hire within and about San Francisco and that decedent was riding as a passenger for hire. This admission would seem to bring the Cab Company within the definition of a common carrier found in section
[4] It was the primary duty of the taxicab driver to exercise, with respect to decedent's safety, the highest degree of care, and the court properly instructed that the doctrine ofres ipsa loquitur was applicable. (Dowd v. Atlas T. A.Service,
[8] At the request of the Oil Company and its employee, the court gave the following instruction: "The fact that the truck driver W.T. Gay might have performed or omitted certain acts
which would have avoided the collision does not prove that his failure to do so was negligence, and neither does it establish that any such acts or omissions would constitute a proximate cause of the injury and death of the deceased." (Italics ours.) With the addition of the truck driver's name, this instruction is an excerpt taken from Sharkey v. Sheets,
The judgment is affirmed.
Tyler, P.J., and Knight, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 26, 1931, and a petition by appellants to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 23, 1931.