CAMPAGNA v. MARKET STREET RY CO

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District Court of Appeal, First District, Division 1, California.

CAMPAGNA v. MARKET STREET RY. CO.

Civ. 12340.

Decided: November 19, 1943

Fitz–Gerald Ames, of San Francisco, for appellant. Cyril Appel, Linforth, Cannon & Miller, and Jesse H. Miller, all of San Francisco, for respondent.

This action was brought by Salvadore Campagna, Jr., through his guardian ad litem, to recover for personal injuries received by him in an accident involving the collision of his father's vegetable truck, in which plaintiff was riding, and a streetcar of the Market Street Railway Company. From a judgment based upon a jury verdict in favor of defendant, plaintiff appeals.

The accident occurred at about 5:30 in the morning of August 13, 1940. Appellant's father was engaged in the business of selling fruit and vegetables from his truck from door to door. The appellant, who was twenty–five years of age at the date of the accident, rode with his father on the truck and assisted him to the extent of his ability. At the time of the collision appellant's father was driving his truck northerly across the intersection of Fremont and Market Streets in San Francisco. Respondent's streetcar was proceeding westerly on Market Street. The accident occurred under such circumstances that the jury could have found that it was proximately caused by the negligence of the father of appellant, by the negligence of respondent's motorman, or by their concurrent negligence. The main contention of appellant is that, either as a question of law or fact, the negligence of his father could not be imputed to him, and that prejudicial error was committed by the trial court in instructing the jury on this doctrine.

It is admitted that, where a defendant relies on imputed negligence as a defense, he must specifically plead the facts constituting this defense, and that the burden rests on the defendant to affirmatively establish it. Huber v. Scott, 122 Cal.App. 334, 10 P.2d 150. It is also the law that instructions must be applicable to the evidence. Even though an instruction is couched in proper language, it is improper if it finds no support in the evidence, and the giving of it constitutes prejudicial error if it is calculated to mislead the jury. See cases collected 24 Cal.Jur. p. 830, § 95.

In the present case the court instructed at length on the doctrine of imputed negligence. The appellant concedes that the instructions given, so far as they went, correctly stated the law, but he contends that such instructions were not justified under the evidence, and that the issue was not properly presented by the pleadings.

First, as to whether defense of imputed negligence was properly pleaded. The answer, as filed, did not specifically plead the defense. It did plead the defense, in general terms, that appellant was contributively negligent, but such a plea is not sufficient to raise the defense of imputed negligence. There is no allegation in the answer that appellant controlled, or had the right to control, the truck of his father. Such allegations are essential to raise the affirmative defense of imputed negligence based on a joint enterprise. Bennett v. Chanslor & Lyon Co., 204 Cal. 101, 266 P. 803; Dover v. Archambeault, 57 Cal.App. 659, 208 P. 178. After the respondent had closed its case on the evidence, a motion was made by its counsel asking permission to amend the answer “by adding the specific defense of imputable negligence, upon the ground that at the time of the happening of the accident the plaintiff and his father were engaged in a joint enterprise * * * and that the negligence of the father, the driver of the automobile, is therefore legally imputed to the boy.” Counsel for appellant vigorously objected to such amendment of the answer at such late date. The trial court granted the request on the ground that “because of the fact you have a defense of contributory negligence in your answer, you may amend by setting up the facts constituting it.” No amendment was in fact ever filed. It is a general rule that mere leave to amend does not of itself operate as an amendment, and if a formal amendment is not filed, the issue involved is not properly pleaded. Central Cal. Creditors' Assn. v. Seeley, 91 Cal.App. 327, 267 P. 138; see cases collected 49 C.J. pp. 548–549, §§ 748–750. Of course, where the motion is made during the trial, and thereafter the case is tried as if the amendment had been made, the parties, by their actions, are estopped, and cannot later complain that no formal amendment was in fact made. Greenwood v. Greenwood, 112 Cal.App. 691, 297 P. 589; Yule v. Miller, 80 Cal.App. 609, 252 P. 733; Morris v. Standard Oil Co., 188 Cal. 468, 205 P. 1073; Parmenter v. McDougall, 172 Cal. 306, 156 P. 460. In the present case the motion to amend was not made until respondent had closed its evidence. It undoubtedly would have been better trial practice for the respondent to have offered a formal amendment. We are not inclined to hold, however, that its failure to do so constituted prejudicial error. This is so because trial courts have wide discretionary powers to grant amendments to conform to proof. If parties are estopped from objecting to the failure to file a formal amendment where the motion to amend is granted early in trial and the case is tried on the theory that the amendment has been made, they should also be estopped where the case is tried on the theory that a certain issue is before the court, and at the conclusion of the trial permission is granted to amend to conform to the proof. In neither situation is the appellant prejudicially affected by the failure to file a formal amendment. The real question on the present appeal is whether the case was tried on the theory that the doctrine of imputed negligence was involved. Stated another way, the real issue is whether there is any evidence, or any reasonable inference from the evidence, that appellant and his father were engaged in a joint enterprise so as to raise the issue of imputed negligence. If there is no such evidence, it was prejudicial error to instruct on the doctrine, whether or not the issue was properly pleaded.

A reading of the entire record demonstrates to a certainty that there is no evidence at all, and no reasonable inference from the evidence, to sustain the implied finding of the jury that appellant and his father were engaged in a joint enterprise. Appellant was admittedly mentally and physically deficient prior to the accident. Admittedly, he had a crippled arm and leg. So far as his mentality is concerned, appellant's counsel, in his opening statement, admitted that “the boy, both before the time of the accident, and at the present time, has been mentally deficient. Doctors disagree as to the exact state of his degree of mentality, whether he has that of an imbecile, or higher, or lower degree; but he was definitely, before the accident, and at birth, mentally deficient.” Counsel then pointed out that prior to the accident appellant was an epileptic subject to fits and convulsions. He also stated that he was going to endeavor to prove that appellant's father was not negligent, but stated that even if he were, “it is our contention that that negligence is not imputable to the son.” In his opening statement, made immediately after that of appellant, counsel for respondent did not mention the doctrine of imputed negligence. He stated, however: “Unfortunately this young man was born an imbecile, and has remained an imbecile all his life * * *.” Thus, as a result of the opening statements, it was in effect agreed that the appellant, prior to the accident, was mentally deficient.

During the trial appellant's mental deficiency was at all times conceded. The only issue in relation to his mental condition that was presented was whether the serious personal injuries he suffered, including a brain concussion, had aggravated the pre–existing condition. The father and mother of the appellant testified that appellant had had but a few months' schooling; that he had been taken out of school because of his condition; that prior to the accident he could dress and care for himself, except that, because of his withered arm, he could not shave or comb his hair very well; that he helped his mother about the house in setting the table, bringing in wood, going to the store, etc. Doctor Charmak, an orthopedic surgeon, was called in to care for the boy after the accident. He testified that he had a history of the case showing that appellant had been suffering from epileptic fits from the time he was born. During the direct examination of this witness a discussion arose between counsel as to the cause of appellant quitting school. Counsel for respondent stated: “Well, I understood it was his mental deficiency, and the fact that he had epileptic fits, which prevented him from getting any schooling.” The court stated: “I think so.” Counsel for respondent, on cross–examination, asked this doctor: “Q. And his general mental condition, he is an imbecile, is he not?” To which the doctor replied: “A. I believe he could be rated as such.” The record continues:

“Q. What would you say his mental equation is, in years? A. Oh, I would say between six and eight years of age * * *

“Q. Didn't you have a history that he was mentally deficient, from birth? A. Yes.”

Dr. F. A. Di Grazia saw the appellant in July of 1940, a month before the accident. At the first meeting, at the request of appellant's mother, he made a casual examination, and a few days later made a more complete examination. He testified, on direct examination, that after the examination “I told the mother I didn't think there was much we could do with that condition.” The record continues:

“Q. At that time he was an imbecile, was he? A. Yes, he was.

“Q. That is before the accident? A. Yes; definitely so.”

When asked: “What age of mentality would you classify Mr. Campagna?” He answered, “He seemed to me an imbecile about nine or ten years of age––nine, I guess.”

Again he was asked: “You would classify him as what, an imbecile?” He replied, “Yes, an imbecile.”

The mother of the boy testified that the appellant began to get convulsions at about three months of age; that thereafter, and up to the time of the accident, he would get periodic attacks; that once he went a whole year, and once two years, without an attack; that he was subject to such attacks up to the time of the accident; that such attacks increased in number and intensity after the accident; that prior to the accident the appellant would help with simple tasks around the house; that “he has always been mentally deficient.”

This is a complete summary of all of the evidence relating to the mental condition of this appellant prior to the accident. Respondent refers to two excerpts from the record which it apparently contends supports the conclusion that appellant, prior to the accident, was not mentally deficient. The father of the appellant, who is a foreigner and obviously had difficulty in explaining his exact meaning, was attempting to describe the difference in the appellant before and after the accident. When asked if the boy was born mentally deficient he testified, “No,” and again, “Well, I don't know anything about that; the boy was all right.” He then explained that as a baby the appellant seemed all right, but began to get fits and convulsions as a small boy. He also testified that up to the time he was five or six “He was okay, that boy.” This testimony cannot be distorted into evidence that prior to the accident the boy had a normal mentality. The record discloses that the witness was trying to compare appellant's present condition with that existing prior to the accident, and was talking about apparent mental condition at birth, not the mental condition that existed after the boy was five or six years old.

The mother of appellant was also asked to describe appellant's condition before and after the accident. After testifying that prior thereto the appellant could dress and undress himself and could bathe himself, but, because of his withered arm, could not shave himself, she was asked: “What was his disposition before the accident?” She replied: “Before the accident I could talk to him, I could reason to him,––sit there and be calm and everything, and it was just like anybody else, he would he all right. You could talk. And he would do anything I say.” Obviously, this evidence in no way contradicts the fact, admitted by both counsel, that appellant was mentally deficient before the accident. Both doctors, without contradiction, testified that prior to the accident appellant was an imbecile with an age rating of not to exceed ten years. From the evidence above set forth it is clear, beyond doubt, that this case was tried with that fact admitted. Respondent is in no legal position to challenge that admitted fact on this appeal.

Reference must also be made to the evidence, other than that of mentality, describing the manner in which appellant assisted his father. The father testified that he was a fruit peddler selling his fruit and vegetables from door to door; that at the time of the accident he was on his way to the commission market to get his day's supply of fruit and vegetables; that appellant was riding on the front seat with him; that he, the father, was driving; that appellant never worked for anyone except for his father; that he first went to work for his father about ten years before the accident; that an elder brother used to help the father on the truck, but when he got married appellant started to help him; that appellant went out with him every day; that “he help me lots. In going to the market he help to load the truck, and after, on the route, he deliver the stuff, fruit, vegetables, and anything for my customers”; that appellant would wait on one customer while he would wait on another; that appellant would carry the baskets of fruit and vegetables, and sometimes collect for them after the father told him how much to collect. On cross–examination the father was asked if he paid appellant for working on the truck. He replied: “Once in a while I give him a few dollars, when I could spare it.” The record continues:

“Q. Whatever the two of you earned, you both went out in the morning to work together? A. Yes.

“Q. Whatever you earned together went into the family pool, didn't it? A. Yes.

“Q. And was used to support the whole family? A. Yes.

“Q. What the boy earned and what you earned? A. Well, the boy is work more voluntary.

“Q. But he was working on the truck and helping you make money in your business? A. Yes.

“Q. And he had no salary? A. No.

“Q. Whatever the two of you earned together was used by both of you together to run the family? A. Yes.”

This is a résumé of all the evidence on this issue. It is the contention of respondent that on this evidence the court was justified in instructing on the doctrine of imputed negligence, and that this evidence supports the implied finding of the jury that the father and appellant were engaged in a joint enterprise. Keeping in mind that such a defense is an affirmative defense and that the burden of proof on all elements of the defense was on respondent, we are of the opinion that on this evidence the trial court was not justified in instructing on the doctrine.

The general rule is that the negligence of the driver of a vehicle is not imputed to the person riding with him. See annotation 90 A.L.R. 631; Restatement of the Law of Torts, Vol. 2, p. 1272, § 490. To this rule there are certain exceptions. One such exception is that where the driver and passenger are engaged in a “joint enterprise” the negligence of the driver may be imputed to the passenger. There are many cases discussing what must be proved by the defendant in order to raise the doctrine. See many cases collected and commented on in annotations in 62 A.L.R. 440; 80 A.L.R. 312; 48 A.L.R. 1055; 63 A.L.R. 909; 95 A.L.R. 857. All of the authorities are agreed that in order to raise this doctrine the defendant must do more than merely show that the driver and occupant had a common purpose. In order to raise the doctrine it must be shown that the driver and occupant are engaged in a common enterprise under such circumstances that each has equal authority and rights over the control and management of the vehicle, and that each assumes a legal responsibility for the other's conduct in the operation of the vehicle. Unless the occupant would be liable for the driver's negligence, the doctrine cannot arise. The evidence must show a mutual agency flowing from what is in legal effect a limited partnership. There must exist not only a joint interest in the objects of the journey, but also an equal right to direct and control the movements of the vehicle. The doctrine is fundamentally predicated upon the right of the passenger to direct and control the movement of the vehicle. If he possesses such right then there is the duty on the part of the occupant to see to it that the vehicle is operated so as not to injure others. If the right to control the operation of the vehicle does not exist, the doctrine cannot arise. Restatement of the Law of Torts, Vol. 2, p. 1273, § 491; Prosser on Torts, p. 416, § 55; Kelley v. Hodge Transportation System, 197 Cal. 598, 242 P. 76; Rogers v. Goodrich, 131 Cal.App. 245, 21 P.2d 122; Evans v. Mitchell, 2 Cal.App.2d 702, 38 P.2d 437; Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160; Moore v. Franchetti, 22 Cal.App.2d 75, 70 P.2d 492; Clark v. Janss, 39 Cal.App.2d 523, 103 P.2d 175; Cope v. Goble, 39 Cal.App.2d 448, 103 P.2d 598; Collins v. Graves, 17 Cal.App.2d 288, 61 P.2d 1198.

When these rules are applied to the present case it is at once apparent that no evidence at all was introduced by respondent to show that appellant ever exercised, or had the right to exercise, any control over the vehicle. The evidence shows that appellant was admittedly mentally deficient. The uncontradicted evidence shows that his mental age did not exceed that of a ten–year–old boy. It need not be held in this case that the capacity to contract is an indispensable element of proof in order to raise the doctrine of joint enterprise, although it has been so held in some jurisdictions (see cases collected 127 A.L.R. 1441 at p. 1454; 38 Am.Jur. p. 938, § 247, n. 11), but obviously the mental age of the occupant of the vehicle is a matter of some considerable importance in determining whether he and the driver were engaged in a joint enterprise. The controlling fact in the instant case is that the evidence not only fails to show that appellant exercised any control over his father, but affirmatively demonstrates that such control, or the right to control, did not exist. The evidence shows that a crippled, mentally deficient son accompanied his father on a truck and assisted him to the best of his ability. The facts that he was not paid a regular salary, or that all the money earned by the father, with the assistance of the appellant, was used to support the family, do not tend to show that the appellant had an equal right with his father to control the manner of operation of the vehicle. There is not one word of testimony that the appellant ever purported to tell his father how to operate either the business, as a whole, or the truck. It cannot possibly be inferred that he had the legal right to control the operation of the truck. There was no evidence of a legal right to share in the profits; there was no evidence of a common right to manage the truck; there was no evidence of a common liability. Under such circumstances, particularly in view of the uncontradicted evidence as to the lack of mental capacity of the appellant, it must be held, as a matter of law, that there was no evidence, or no reasonable inference from the evidence, that would support a finding that appellant and his father were engaged in a joint enterprise. Under the authorities already cited, it was error of a most serious and prejudicial nature to have instructed on the doctrine.

In addition to the instructions on imputed negligence, the trial court instructed on contributory negligence. There was not one word of testimony that tended to show that appellant was guilty of contributory negligence, independently of the doctrine of joint enterprise. The giving of such instructions was clearly error.

During the course of the trial appellant offered in evidence an operating rule of the respondent numbered 113. This rule reads as follows:

“Restrictions of Speed.

“113. Cars must approach the end of double track, junctions, curves, switches, terminals and street railroad crossings at a speed that will enable them to stop at the required distance from such places regardless of any emergency that might arise.

“(a) The speed of all cars will ordinarily be that prescribed in the schedule, but in cases of delay requiring greater speed in order to maintain the schedule, the speed at places not specifically restricted, may be so moderately increased as in the judgment of the trainmen in charge of the car may be safe and prudent, due consideration always being given to the location and condition of track, curves, traffic and all other circumstances.

“(b) Speed must not exceed three miles per hour when passing another car discharging passengers, a loose tongue or electric track switch, or short radius curve, and must not exceed eight miles per hour crossing another railroad track, a switch, crossover or junction. Cars must approach all crossovers and switches and intersections with care, and the motorman must be prepared to stop should other cars pull in ahead of them. * * *”

It was stipulated that this was a rule adopted by respondent, and that the motorman knew of its existence. The trial court, on objection of respondent that such rule was inadmissible because it imposed a greater duty of care than that required by statute or ordinance, refused to permit its introduction into evidence. Such rule, if material to the issue before the court, was admissible. Gett v. Pacific G. & E. Co., 192 Cal. 621, 221 P. 376; Nelson v. Southern Pacific Co., 8 Cal.2d 648, 67 P.2d 682; Smellie v. Southern Pac. Co., 128 Cal.App. 567 at page 583, 18 P.2d 97, 19 P.2d 982. Respondent concedes that the above cases establish the rule that operating rules of a street railroad, in a proper case, are admissible and may be considered by the jury in determining whether or not the motorman was negligent, but contends that this particular rule was not material. It will be noted that the rule provides that the speed of streetcars “must not exceed eight miles per hour crossing another railroad track, a switch, crossover or junction.” The evidence shows that Market Street has four tracks, two for cars traveling east, and two for cars traveling west. Fremont Street is a one–way street for northerly traffic. It has double tracks, which curve and cut into the two westerly tracks on Market Street. Obviously, the situation falls within the exact situation described in the rule above quoted. Respondent argues, however, that the rule was not intended to regulate the speed of the streetcar in relation to vehicular traffic but only in relation to other streetcars. The rule placed a limitation of eight miles per hour on the motorman in crossing another “track, a switch, crossover or junction.” While violation of the rule would not constitute negligence per se, the appellant was entitled to have the rule admitted on the issue of negligence. There is nothing in the rule which limits its application to other streetcars. It was obviously a rule intended to limit speeds at the designated spots not only for the benefit of other streetcars, but for the benefit of all vehicles or persons at such places. The prejudicial effect of its exclusion is at once evident when it is pointed out that some of respondent's own witnesses testified the streetcar was proceeding at a speed in excess of that provided in the rule, but not in excess of that set forth by city ordinance (fifteen miles per hour).

The judgment appealed from is reversed.

I dissent. I agree that when a case is tried upon a definite theory, and permission to amend a pleading to conform to the proof is given, the neglect to file the proposed amendment, though bad practice, is not necessarily prejudicial error.

Relative to the mental condition of plaintiff there is conflicting evidence from which several conclusions could be drawn. I prefer to adopt that evidently reached by the jury. The evidence shows that the adult plaintiff for a long period of time had acted as a peddler of fruits and vegetables. His father, engaged in the same enterprise, testified that his son was “okay.” The proceeds of the business were placed in the family pool. There is no direct evidence in the record, and the majority opinion does not hold, that plaintiff, though mentally deficient, was incompetent to enter into a joint venture with his father in the conduct of a fruit and vegetable peddling business though lack of mental capacity is emphasized in the majority opinion. As an incident to their business it was necessary for them to go to the wholesalers at frequent intervals to purchase produce which they loaded on their truck. They were on such a mission when the accident occurred.

The evidence shows a mutual agency consisting of a limited partnership, from which a reasonable inference may be drawn that both the father and son had a right to direct and control the movements of the vehicle. The majority opinion, as I read it, is based upon the fact that there is no evidence that the son ever directed the father as to the operation of the truck. The fact, if it be a fact, that no such direction was given, is not proof of the lack of the son's authority in that regard. The fact that a driver and another are in possession of a vehicle used in a joint enterprise is sufficient to impute the contributory negligence of one to the other. Archer v. Chicago N. St. P. & P. R. Co., 215 Wis. 509, 255 N.W. 67, 95 A.L.R. 851 et seq.

In joint enterprise cases the burden of proof is on the party so alleging; but it is frequently necessary to resort to circumstantial evidence to prove the equal rights of the joint adventurers. Had the father been asked the direct question––could your son direct your movements in driving the truck?––and the answer been in the negative, such answer would not be binding on the jury. It could disbelieve the witness and conclude, from all the facts and circumstances of the conduct of the business, that the son held equal rights in the operation of the vehicle. In Blank v. Coffin, 20 Cal.2d 457, 460, 461, 126 P.2d 868, 870, the court said: “An inference is a conclusion as to the existence of a material fact that a jury may properly draw from the existence of certain primary facts. Cal.Code Civ.Proc. §§ 1958, 1960, 1832; see cases cited in 10 Cal.Jur. 736–738, § 59. It is not always possible for a party to a lawsuit to introduce evidence directly bearing upon the existence of a fact that he is attempting to prove. The evidence available to him may serve only to establish the existence of certain primary facts that are logically connected with the material fact. If a jury can reasonably infer from these primary facts that the material fact exists, the party has introduced sufficient evidence to entitle him to have the jury decide the issue.” In the present case, unless the jury determined that the father was solely responsible for the accident it must have determined from facts logically connected with the ten–year business association of the parties that there was an implied partnership, or at least a joint enterprise.

In determining the claim of a joint enterprise, each case must stand upon its own facts and circumstances. A distinction may arise in automobile accident cases between association for social purposes or pleasure and those of a business character. It may in a given case be essential to establish that an injured party on a pleasure trip had control over the driver of the vehicle. In a business enterprise, particularly when such relations have been in existence for a reasonable period, past conduct in the operation of the business may justify a reasonable inference of joint and equal control in the operation of a vehicle incident to their business.

In the case of Kelley v. Hodge Transportation System, 197 Cal. 598, 242 P. 76, cited in the majority opinion, a young lady and her escort were taking a ride for pleasure. There the “community of interest” did not indicate that the young lady passenger was entitled to be heard relative to the management of the vehicle, and she was held to be a guest of the driver. An award by the trial court was affirmed. In Rogers v. Goodrich, 131 Cal.App. 245, 21 P.2d 122, plaintiff prepared and served alcoholic drinks to her escort with whom she subsequently rode as a guest. The contention that all parties to the “joy ride” were engaged in a joint enterprise was not upheld by the jury or by the reviewing court. Evans v. Mitchell, 2 Cal.App.2d 702, 38 P.2d 437, is clearly a “guest” case, and as in the previous cases the verdict was upheld. In Strandt v. Cannon, 29 Cal.App.2d 509, 514, 85 P.2d 160, 162, it was held that “the negligence of the driver * * cannot be imputed to the guest.” In the present case there is no claim by appellant that he was a guest of his father. In Moore v. Franchetti, 22 Cal.App.2d 75, 78, 70 P.2d 492, 494, express permission had been granted a daughter to drive her father's car. Upon her invitation, her sister, subsequently injured, accompanied her but did none of the driving. “The common enterprise consisted solely of the fact that they were riding together.” In Clark v. Janss, 39 Cal.App.2d 523, 103 P.2d 175, 177, a mother gave her daughters permission to drive to a nearby city for dinner. One did the driving; the other was injured in an accident sustained. There was “an entire absence of evidence showing the necessary right of control” on the part of the injured sister, and accordingly the judgment was affirmed. In Cope v. Goble, 39 Cal.App.2d 448, at page 455, 103 P.2d 598, at page 602, appellant's claim was: “* * * that the state of the evidence did not justify submission to the jury of an issue of principal and agent, master and servant, or employer and employee.” No claim of imputed negligence based upon partnership or joint enterprise was presented. Once more the judgment was affirmed. In Collins v. Graves, 17 Cal.App.2d 288, 61 P.2d 1198, plaintiff (appellant), a deputy sheriff, was at the time of the accident riding with an undersheriff in a county owned car from Fresno to Sacramento. They were on a similar though not identical mission, the undersheriff doing the driving. Appellant claimed to be riding as a guest. It was held that as a matter of law a joint enterprise had not been shown and that (17 Cal.App.2d at page 297, 61 P.2d at page 1202): “Having tried the case on the theory that the testimony relating to the question of joint enterprise was such as to present a question of fact to the jury, it does not lie within the mouth of the appellant to now argue that the court erred in so doing.” There are numerous other cases than those cited in the majority opinion wherein social activity, pleasure or accommodation played a part, and the jury and reviewing court held that a joint enterprise had not been proven. It is well established that joint adventure may not be declared solely upon evidence that a social relationship existed.

The discussion may be taken a bit further. There is authority holding that when parties are engaged in a common enterprise, even business, one owning the car and doing the driving and the other contributing toward the expenses of a trip, the right of the “guest” to control the operation of the car does not exist. Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914; Rogers v. Goodrich, supra. It is the claim in such cases that has caused the emphatic language, upon which the majority opinion is based, to be used. In McCann v. Hoffman, 9 Cal.2d 279, 70 P.2d 909, it was held that compensation may be as variable as are the facts in different cases (Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53; Whitechat v. Guyette, 19 Cal.2d 428, 122 P.2d 47), but in the present case the question of guest or compensation for the ride is not involved.

It is conceded that the instruction as given was a correct statement of the law. That the father was solely or at least responsible in common appears from the evidence. Under the latter theory the instruction was proper. The refusal to give instructions upon one of the defenses supported by substantial evidence would have been error. If there was no evidence of a joint enterprise this court would be justified in declaring as a matter of law that the instruction was improper, but under all the circumstances as they appear in the record it is necessary, in order to reach the conclusion adopted in the majority opinion, to weigh the evidence and substitute the view of the reviewing court for that of the jury.

A joint adventure is a limited partnership or association of persons in a common enterprise for profit. A partnership or a joint adventure may relate to one or more transactions. 14 Cal.Jur., p. 760, sec. 2. A partner has equal rights with his associates in the management of the business. Civil Code, sec. 2412. Where several persons, assuming a community of interest, are associated to promote profit, the rules are the same. Butler v. Union Trust Co., 178 Cal. 195, 172 P. 601; Arnold v. Humphreys, 138 Cal.App. 637, 33 P.2d 67.

Appellant was a business associate of his father in business for profit. In Heitman v. Pacific Electric Ry. Co., 10 Cal.App. 397, 102 P. 15, a deceased was associated with one Caseboom in the transfer business. Caseboom drove a wagon drawn by mules upon the tracks of defendant railway. Held that the negligence of Caseboom was imputed to the deceased. In that case the only question seemed to be, was Caseboom guilty of negligence.

In Schron v. Staten Island Electric R. Co., 16 App.Div. 111, 45 N.Y.S. 124, at page 125, where a father and son were engaged in moving goods by means of a horse and wagon, the court held: “* * * They were therefore engaged in a joint occupation and venture, and each became liable for the negligence of the other.” Cass v. Third Ave. R. Co., 20 App.Div. 591, 47 N.Y.Supp. 356; Van Horn v. Simpson, 35 S.D. 640, 153 N.W. 883. The court properly held that the question of negligence and contributory negligence were questions for the jury.

In the present case there was evidence that the father and son were engaged in a business which was jointly personal to the father and son. “When the journey on which the plaintiff and the driver of the vehicle are participating is itself a part of a business enterprise in which the parties are mutually interested, the two are engaged in a joint enterprise.” 95 A.L.R., p. 858. Contributory negligence is a matter to be passed upon by a jury. It was therefore within the province of the jury following well–established principles of law to pass upon the fact as to whether plaintiff at the time of the accident had the right of joint control with the driver of the vehicle. Bryant v. Pacific Electric Ry. Co., 174 Cal. 737, 164 P. 385.

The facts of this case warrant a verdict for the defendant upon the evidence that the father was solely responsible for the accident. On the morning of its occurrence the visability was good. The driver of the truck crossed a street on which there were four sets of street car tracks, two carrying westbound traffic; and two, eastbound. He knew that it was quite possible for him to meet from one to four street cars at the intersection, and this should have constituted a practical warning. He approached the intersection from the south, intending to cross it, and struck the street car moving along the third set of rails, and at the time well into the intersection, on its side about ten feet back from the front thereof. The motorman testified that he slowed down as he entered the intersection and made an observation for vehicles; that there were none, but that a street car going east partially obscured his vision just before the accident. Assuming that the negligence of the father was not the sole proximate cause of the accident, and that there was evidence that the defendant was negligent, there is an overwhelming amount of evidence that the father was guilty of contributory negligence in running into the side of the street car.

Certain rules of the defendant company were admitted in evidence. Appellant claims reversible error in an instruction quoted in the majority opinion. The admission of operating rules is subject to the limitation that they are material to an issue in the case. An analysis of the rule herein indicates that it is for the protection and to save wear and tear of the car and the tracks; but even assuming it to be susceptible to the construction given in the majority opinion, the verdict of the jury must have been based upon the sole negligence of the driver of the truck, in which event the refusal of the instruction is immaterial. If the contributory negligence of the driver of the truck be considered, it must first be determined that the defendant was negligent. Assuming the negligence of the defendant to have been established, it is immaterial whether defendant motorman operated his car at a speed of fifteen miles an hour under the provisions of the law, or not to exceed eight miles an hour under the rules of the company. In either event the refusal of the instruction should not be held to be and is not prejudicial. The speed of the street car was a question of fact. Any limitation by rules of the company upon its employees more strict than the prevailing law would and could not change the rule of ordinary care applicable to the facts of this case. It must be assumed, if there is any basis for the majority opinion, that the driver of the truck was negligent. If the jury so found, appellant was not harmed by a refusal to admit the rule in evidence.

In conclusion it may be said, whether a given inference may be drawn is a question of fact. If the jury from the evidence draws an inference upon which it bases a verdict unfavorable to a litigant, a reviewing court may not substitute its opinion for the conclusion reached by a fair, impartial jury. Crawford v. Southern Pacific Co., 3 Cal.2d 427, 45 P.2d 183; Pacific Lumber Co. v. Industrial Acc. Comm., 22 Cal.2d 410, 139 P.2d 892.

In my opinion the judgment should be affirmed.

PETERS, Presiding Justice.

KNIGHT, J., concurs.