Lewis v. South San Francisco Yellow Cab Co., 14107
| Decision Date | 04 October 1949 |
| Docket Number | No. 14107,14107 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LEWIS v. SOUTH SAN FRANCISCO YELLOW CAB CO. et al. |
E. C. Mahoney, Burlingame, for appellant.
Hoge, Pelton & Gunther, San Francisco, Harry N. Grover, San Francisco, Leo V. Killion, Reginald M. Watt, San Francisco, for respondents.
From a judgment entered after order granting defendants' motion for a nonsuit, plaintiff appeals.
The sole question presented is whether there was any evidence to support the allegations of plaintiff's complaint.
Complaint.
While the defendants set forth in the complaint were the South San Francisco Yellow Cab Company, a partnership, Walter Ryan and three Does, answers were filed by Walter Ryan, doing business as South San Francisco Transit Company, and Hughlan T. Phillips, 'sued as 1st Doe' (actually he was sued as 3rd Doe). No point is made of these discrepancies and hereafter they will be disregarded.
The complaint, after alleging operation by defendants of a line of cabs for transportation of passengers for hire, states that at a certain time plaintiff entered one of defendants' cabs She then alleges that 'plaintiff's injury was the proximate result of said defendant's wrongful conduct' and sets forth the extent of the injury, together with allegations of damage resulting therefrom.
A reading of the complaint shows that its gravamen is that the wrongful conduct of the cab driver caused plaintiff to fear that she was in danger of being attacked by him, causing her to flee from his threatened assault, as a result of which she was injured. Now, let us see if there are any facts to support this issue.
Facts.
Plaintiff was the only witness on the question of liability. She testified that she was a waitress employed in San Francisco. On a day early in September, 1946, after attending an evening picture show, she found, on arriving at the Greyhound Bus Depot, that she had just missed the bus to San Bruno, where she resided. She then decided to take a bus to South San Francisco and a taxicab from there to her home. She arrived at the bus station in South San Francisco about 12:00 midnight. She then went to the defendants' cab stand and stated to defendant Phillips, hereafter referred to as the driver, whom she knew, that she wanted a cab to take her to her home in San Bruno. He said he would be right back and she waited for him. In a few minutes he returned having with him a sailor, whom she had seen a lot of at one time but whom she had not seen for a year or more. The sailor asked her if she wanted to go out that night, She paid the driver $1 as fare. Plaintiff sat in the front seat between the driver and the sailor. There was another sailor and a girl in the back seat. They got off at Lindenville, which was about a mile from plaintiff's home. The sailor had his arms around her and was kissing her, to which plaintiff objected. When the cab was about two blocks from her home the driver made a U-turn and said he 'wasn't taking me home.' At first plaintiff thought he was joking. When she told him to turn back as she wanted to go home he 'just kept laughing and driving on.' At Sneath Lane he stopped the cab and said he 'wasn't going to drive any further and told me to get out with the sailor.' The sailor had not said anything about driving up there. After the cab stopped plaintiff told them she 'had to go to the bathroom' and the driver said that she could stay 'here.' She said 'No, I will be back,' got out of the cab, started running behind it, and fell into a ditch or culvert, breaking her foot. She crawled out to where the ground was level. The driver and the sailor heard her, did all they could to render assistance, and took her to the hospital. Plaintiff thought the driver was 'crazy' for stopping and saying he was not going to drive any further. The driver made no advances towards plaintiff during the evening, nor did he use any amorous terms towards her. He remained in the driver's seat when she left the cab. He did suggest that she go out and have a good time with the sailor. The allegation in the complaint to the effect that the driver made advances towards her or that she was in fear of being attacked by the driver was not true. She testified that in these allegations she meant the sailor, not the driver. The driver made improper...
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