This is an appeal from a judgment in favor of defendants in an automobile collision case, and the sole question presented by the plaintiff is this: “Is the negligence of the driver of one of two automobiles involved in a collision to be imputed to his passenger on the theory of joint enterprise in a ease where the only facts tending to prove joint enterprise were as follows: Both the driver and passenger were employed in the same public garage; the former as a foreman, the latter as helper or mechanic. The foreman, in the course of his employment, received a call to go out and start a stalled car and he told the helper or mechanic to go with him to start the car. They got in the foreman’s own car with the foreman driving, and were en route to said job when the collision occurred.”
The reply of the defendants is that before the first witness was sworn and throughout the trial the plaintiff took the position' and tried the ease on the theory that the testimony relating to the question of joint enterprise was such as to present a question of fact to the jury, by handing to the court the following instruction, which the court gave to the jury: “Defendants have alleged that the plaintiffs Ybarra and Ray were engaged in a joint or common enterprise. To constitute a joint or common enterprise such as would bar plaintiff Ray’s recovery for his damages, if any, if you find by a preponderance of the evidence that the driver with whom plaintiff Ray was riding was negligent there must be more than a common desire and common method of transportation. There must be a community of interest in the objects or purposes of the undertaking and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control and management. ’ ’
The same instruction was given at plaintiff’s request in the case of Collins v. Graves, 17 Cal. App. (2d) 288, 296 [61 Pac. (2d) 1198], In that case the court said at page 297: “Having tried the ease on the theory that the testimony relating to the question of joint enterprise was such as to present a question of fact to the jury, it does not lie within the mouth of the appellant to now argue that the court erred in so doing, and that as a question of law it must be held that no joint enterprise is shown. In Noble v. Miles, 129 Cal. App. 724 [19 Pac. (2d) 265], speaking through Mr. Presiding Justice *585Pullen, this court, following the rule stated in 2 California Jurisprudence, page 846, said: ‘Parties must abide by the consequences of their own acts, and cannot seek a reversal of a case upon appeal for errors which they have committed or invited; and one who, by his conduct, induces the commission of some error by the trial court, or, in other words, who has invited error, is estopped from insisting that the action of the court is erroneous.’ ”
The plaintiff contends that he did not submit the question of joint enterprise to the jury as a question of fact for the reason that at the close of the defendants’ ease the plaintiff moved for a directed verdict on the ground that the defendants had failed to establish a joint or common enterprise. Nevertheless, the fact'remains, that the above instruction was not withdrawn and was before the court. On appeal it is the duty of this court to draw all inferences in favor of the judgment, and this court must assume in the light of the record that the plaintiff was equally pressing his theory ^ that the issue was a question of fact for the jury. There is nothing in the record to indicate that the plaintiff made clear his election as to which position he would take, and this court on appeal will not assume said election for the purpose of defeating the judgment. (2 Cal. Jur. 852, and cases cited.)
Judgment affirmed.
McComb, J., concurred.