The opinion of the court was delivered by
This was an action to recover damages for personal injuries resulting from a collision between an automobile in which plaintiff was riding and a taxicab. Defendants were the Wichita Cab Company and the driver of the cab. Plaintiff prevailed, and the defendants appeal.
The collision occurred at the intersection of Broadway and Central avenues in the city of Wichita. Plaintiff was traveling north on Brоadway, and the car stopped on the south of the intersection until the signal turned green. Plaintiff was seated in the front seat with the driver. The driver signaled for a left turn. The cab came from the north on Broadway and struck the automobile at the rear right wheel and fender. The cab continued across Central avenue and stopped. The driver then returned and admitted the accident was occasioned by his fault. The taxicab company is the principal appellant, and it will be designated as the defendant.
Defendant’s first contention of еrror is that a continuance should have been granted. Defendant, at the start of the trial, moved for a continuance on acсount of the absence of the defendant cab driver. The substance of the motion was that the cab driver was the only eyewitness to the accident other than plaintiff and the driver of the automobile. In plaintiff’s opening statement reference was also made to statements of a police officer who appeared at the scene of the collision. Following plaintiff’s opening statement, defendant again moved for a continuance. The cab driver was not only an absent witness but a defendant. It appears prior continuances had been granted to defendant, due to the absence of the cab driver. No showing whatever was made as to the present whereabouts of either the cab driver or police officer. The latter was no longer employed by the pоlice department. There was no indication when either of these parties might be found. The granting or refusing of a continuance rests in thе sound discretion of the trial court. (Powder
No attempt was made to comply with the statutory requirements for a continuance. (R. S. 60-2934.) The error сomplained of cannot be upheld. (Minch v. Winters,
“Defendants did not follow the proper practice to obtain a continuance as prescribed by the code (R. S. 60-2934); the motion or request was not backed by a pertinent affidavit; and the error complained of cannot be sustained. (State v. Giles,119 Kan. 417 ,239 Pac. 756 . See State v. Ball,110 Kan. 428 , 432,204 Pac. 701 ; Leach v. Urschel,112 Kan. 629 , 635,212 Pac. 111 .)” (p. 541.)
Defendant next contends the evidence failed to show the cab driver was acting within the scope of his employmеnt, and that the evidence in fact disclosed he was an independent contractor and not the agent or employee of thе cab company. Neither contention is sound. True, defendant’s evidence disclosed the cab was owned by an individual, its driver had been еmployed by the owner and the cab company received its pay from the owner. The cab company, however, held itself оut to the public as a carrier of passengers. The public dealt with the cab company. Passengers did not call the owner for service, but called the cab company. The cab company notified the driver concerning the service requested and the drivеr performed that service. He performed it at the direction of the cab company. It was under this method the cab compаny operated its business and received its compensation. To permit a cab company to evade liability for injuries under thesе circumstances would indeed be an easy way to circumvent police ordinances requiring taxicab companies to cаrry insurance for the protection of the general public.
First, was the cab driver acting in the scope of his employment? The evidеnce clearly disclosed he had stopped just prior to the accident, northeast of the intersection, to load or unload persons. There was positive evidence there were at least two persons in the cab. Moreover, the evidence is that the cab driver himself said they were passengers. We need pursue that subject no further.
Second, was he an agent or employee of the cab company? In addition to what has been previously stated, the evidence further discloses the following pertinent facts: The cab company made the
Defendant further contends plaintiff was guilty of contributory negligence as a matter of law. The contention lacks merit. Joint enterprise is not in this case. The negligencе of the driver is not for any other reason here imputed to plaintiff. Plaintiff was riding in the car. To be sure, she had a duty to exercise reasоnable care for her own protection. The jury specifically found she had performed that duty when it found she was not guilty of contributory negligence. We have carefully examined the evidence, and especially that of plaintiff, to which defendant directs our attention. It contains some statements indicating plaintiff did not keep her eyes riveted solely on the cab, which had been stationary at а point northeast of the intersection. She was also observing another car which was about to enter the intersection from the еast as the car in which plaintiff was riding turned to the left. Under all of the circumstances the jury found the car in which plaintiff was riding had the right of way as tо the cab. We find no evidence to the contrary. No complaint is made concerning the instructions. There was abundant evidence to support the jury’s finding absolving plaintiff of negligence. The finding must therefore stand.
Other minor contentions have been noted and examined, but are not considered of sufficient importance to require discussion.
The judgment is affirmed.