Meyers

The matter before the court herein is an appeal by the defendant Southern Pacific Company from an order granting a new trial. The order granting the motion for a new trial, from which the appeal is taken, is in the words following: “The motion for new trial, heretofore submitted, at this time it is ordered, that the motion for a new trial be and is hereby granted on the sole ground that the court left the question of common enterprise to the jury and did not instruct the jury that the negligence of the driver could not be imputed to the plaintiff.”

On the evening of February 2, 1921, between 9 and 9:30 o’clock, plaintiff and two companions named, respectively, Torry and Ronden, were traveling in a single-seated automobile in a southerly direction following the car tracks on the westerly side of Alameda Street, in the city of Los Angeles, where the automobile collided with a train of cars operated by the defendant Southern Pacific Company that was being backed or “kicked against traffic” on the westerly side of Alameda Street—and from which accident plaintiff received injuries of which he complains in this action.

The evidence relating to the question of joint enterprise, or…