Gulzoni v. Tyler 64 Cal. 334

Sharpstein, J.

The court erred in sustaining objections to the introduction of evidence by the defendants to prove that, at the time when the plaintiff received the injuries complained of, the defendants were not managing, controlling, or running the steamer on which the plaintiff Avas injured, but that the same Avas run, managed, and controlled by the “California Steam Navigation Company.” Such evidence Avas relevant to a material issue in the case. The plaintiff alleged that said steamer was employed by the defendants in carrying passengers, etc., and that said “ defendants so negligently and unsldllfully conducted themselves in the management of the said boat, and through the negligence and unskillfulness of themselves and their servants, the plaintiff Avas injured.” This and all other allegations of the complaint Avere denied by the defendants in their ansAver, and any evidence havúng a tendency to prove that they did not employ said steamer in carrying passengers, nor at " the time Avhen the plaintiff received his injuries, haAre the management or control of it, but that the same Avas employed at that time in carrying passengers, and Avas managed and controlled by another person or corporation Avas clearly admissible.

The ground upon AA'hich respondent’s counsel claims that these rulings Avere correct, is that the boat Avas registered as belonging to the defendants, and although not conclusive, it Avas prima facie evidence that they AArere and continued to be her OAvners, until it was shown that they had ceased to be, and that *336the defendants made no attempt to prove a change of ownership ; and that nothing short of this could relieve them of liability for damages caused by the negligence of those who run, managed, and controlled the boat.

The rule as stated in Shearman and Redfield on Negligence (§ 501) is that if the owner of property lets or lends it, and transfers the entire possession and control of it to another, the owner is not responsible for the wrongful use or mismanagement of it by the transferee. Whoever had the exclusive possession, management, and control of the boat, its officers and men, was alone responsible for its mismanagement. And whether rightfully or wrongfully in such possession, the liability would rest on them alone. Under the rule respondeat superior this must be so.

If the defendants were owners of the boat, but had not the possession, control, or management of it themselves, or by their agents, servants, or employees, they cannot be held responsible for the negligence or mismanagement of whoever had the exclusive possession, control, and management of it.

The evidence of what the plaintiff said when asked whether he blamed anybody on the boat should not have been stricken out. Evidence of what he said in regard to the occurrence was admissible for the defense. If he expressed an opinion as to who was to blame, the defendants were entitled to have the benefit of it.

It was error to permit the plaintiff to write his name in the presence of the jury for the avowed purpose of having the jury compare, and then permitting them to compare his signature, written in their presence, with his signature to a release signed by him about the time of his receiving his injuries, in order “ to show the nervous condition of the witness at the time of the accident.”

We know of no rule which would sanction a comparison of handwritings for such a purpose. Besides, if there was a materia,! difference between the handwriting of the plaintiff at the different dates, there was at least a liability that some of the jurors might have been led to doubt the genuineness of the signature to the release, which was not denied.

In one of the instructions the court substantially charged the *337jury that the plaintiff had a right to be near the gangway, and it Avas not contributory negligence for him to be there, “ unless such location Avould have been considered by a man of ordinary prudence dangerous under the circumstances, and unless the employees of the boat had given plaintiff sufficient Avarning to enable him to avoid it.”

And if he had “sufficient Avarning to enable him to avoid” the danger, Avas it prudent for him to remain there? Would a prudent man have remained after having been warned of the danger, even if it Avas not othenvise apparent to him? The instruction is to the effect that if a man of ordinary prudence Avould have considered it dangerous to be there, it was not contributory negligence for the plaintiff to be there, unless warned of the danger by the employees of the boat; and even then it Avas not contributory negligence for him to remain there unless a man of ordinary prudence Avould have considered it dangerous to do so. Under such an instruction an ordinary jury could hardly be expected to see very clearly what would constitute contributory negligence.

Judgment and order reversed and cause remanded for a new trial.

Boss, J., Mybick, J., and McBiestby, J., concurred.

Thornton, J., concurring.

I concur in the foregoing opinion except as to the second point ruled in it. I do not think that the evidence of what the plaintiff said many hours after the happening of the event, by Avhieh he Avas injured, was admissible in evidence. The remark of plaintiff Avas not an admission of a fact. It was an inference or opinion drawn from a number of facts, and so far as Ave are informed by the statement or bill of exceptions, from Avhieh we get all our information on the subject, it was not based on plaintiff’s knoAvledge of all the facts touching the manner in which he was hurt, but upon the statements of others, which might not haAre been true. It does not appear that plaintiff knew or could have known all the facts of the occurrence alluded to. It Avas most improbable that he did know them. In my opinion the remark of the plaintiff that he was to blame, not being an admission of a fact, should not have been allowed to go to the jury.