Burns

The appeal is from a judgment of non-suit. The action was brought originally against five defendants: The Southern Pacific Company, George H. Jackson, Jackson M. Diggs, W. G. McRoberts, and F. G. Prinderville, but on the first trial a nonsuit was granted as to Diggs, Jackson, and McRoberts, the jury exonerated the Southern Pacific Company, and rendered a verdict against Prinderville for the sum of two thousand dollars. An appeal was taken from said judgment of nonsuit and it was affirmed by this court as to Diggs and McRoberts but was reversed as to the defendant, George H. Jackson. (Burns v. Southern Pac. Co., 43 Cal. App. 667 , [ 185 Pac. 875 ].)

In that decision it was said: “Without setting forth the evidence in detail, it is necessary to say that there was sufficient evidence to take the case to the jury as to the defendant Prinderville being an employee of the defendant Jackson, and also as to the negligence of the defendant Prinderville in the operation and management of the auto-truck at the time of the collision.”

The motion for nonsuit at the second trial was based upon the contention of an entire lack of evidence that Prinderville was in the employment of Jackson at…