29 Cal. App. 2d 244 | Cal. Ct. App. | 1938
This is an appeal from a judgment against the defendant in the ease of a collision between the bicycle of the defendant and a pedestrian. The contention of the defendant is (1) that there is no evidence showing negligence on the part of the bicycle operator, (2) that deceased was guilty of contributory negligence as a matter of law, and (3) that the operator of the bicycle was not at the time of the accident acting within the scope of his employment.
On the 19th day of January, 1937, at approximately the hour of 6 o’clock A. M., Eugene Blyth and Victor Korth, messenger boys in the general employ of the Western Union Telegraph Company, were riding bicycles north on Figueroa Street, the Korth boy riding approximately a bicycle length ahead of and to the left of the Blyth boy. The Blyth boy wore the uniform and the cap of the company. Upon the cap was printed the words, “Western Union”, and on the bicycle operated by the Blyth boy appeared a sign with the printed words, “Western Union”. The Blyth boy carried with him a kit or bag which was slung from his shoulder by means of a shoulder strap; which bag was of brownish green color. As the boys approached the intersection of West Eighth Street, the Korth boy yelled to the Blyth boy concerning the presence of the deceased, but the Blyth boy struck the deceased, claiming that it was too late for him to avoid
It is our duty to view the evidence in the light most favorable to the successful party. In our view there is substantial evidence to support the implied finding of negligence on the part of the bicycle operator.
The defendant contends that the decedent was guilty of contributory negligence because, it alleges, the decedent was guilty of the violation of section 562 of the California Yehiele Code, which reads as follows: “(a) Every pedestrian
We are also of the view that there is some substantial evidence to sustain the implied finding that the bicycle rider was at the time of the accident acting within the scope of his employment.
Judgment affirmed.
Wood, J., and McComb, J., concurred.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 12, 1939.