Pozzobon

Plaintiff was awarded $1500 damages by a jury, and judgment was entered accordingly. Subsequently the trial court granted a new trial on the ground of errors of law. From the order made in that behalf plaintiff appeals. The action arose out of an automobile collision which occurred on Christmas day at an intersection of two streets in San Mateo, between a Ford passenger automobile owned, driven, and occupied by plaintiff, and a Chevrolet delivery wagon owned by the defendant Bray, driven by his employee, the defendant O’Donnell, and occupied by O’Donnell and his wife. Both automobiles were more or less wrecked, and their occupants sustained personal injuries.

The defendants answered separately and each filed a cross-complaint for damages, alleging that the collision was proximately caused by plaintiff’s negligence. O’Donnell’s answer set up a special defense to the same effect. Bray alleged by way of special defense that on the day of the accident O’Donnell was driving and operating said delivery wagon without his knowledge, permission or consent, not in furtherance of his business nor for or on his behalf. The evidence adduced in support of Bray’s special defense shows that he…