Fagundes v. Central Pacific Railroad , 3 L.R.A. 824 ( 1889 )

Foote, C.

—The plaintiff brought this action to recover damages for the death of his son, caused by the alleged carelessness- of the defendant.

After the introduction of the evidence on the part of the plaintiff, the defendant moved for a nonsuit, which was refused. It then introduced evidence in its own behalf, after the conclusion of which a motion for a non-suit was again made and granted. The plaintiff then moved for a new trial, which the court allowed, from which the defendant appeals.

There is no conflict in the evidence.

The deceased was a laborer employed by the defendant to remove snow and other obstructions from its track, and was under the immediate control of a road-master.

He had directed the former to take his place in the car having sleeping accommodations, in company with other laborers, to be transported by an expected train to another part of the road, in order that he might perform certain work which had to be done in clearing the track of snow.

The laborers were asleep in the car on a side-track, when a train which had to get upon that track, in order to permit a passenger train to pass, collided with the car in such a way as to cause a snow-shed to fall upon it, whereby the deceased was killed. The accident was primarily caused by a track-walker, by the name of Joe Rabbitt, who interfered with a switch with which he had no concern, turning the car-wheels in the wrong direction, and of the conductor of the train, perhaps, in not being sufficiently on the alert to prevent the intermeddling of Rabbitt. Conceding, without deciding, that the evidence was responsive to the issues made by the pleadings, the question to be determined is, whether or not the Central Pacific Railroad Company is responsible for the carelessness of the conductor and track-walker.

If they are to be held as the fellow-servants of the deceased, and engaged about the business of their common master, in the same general employment, then the company would not be responsible, unless the record shows that the defendant neglected to use ordinary care in the selection of the conductor and track-walker. (Civ. Code, sec. 1970; Stephens v. Doe, 73 Cal. 28; McLean v. Blue Point Gravel Mining Company, 51 Cal. 257; Fisk v. C. P. R. R. Co., 72 Cal. 42; Brown v. C. P. R. R. Co., 72 Cal. 523.) There is nothing in the evidence which tends to show any negligence on the part of the defendant in the selection of the employees whose carelessness caused the casualty.

Neither the conductor nor track-walker is shown to have had anything to do with the selection of employees for the company, nor is it made evident that either of them was in any sense managing assistant for it in the conduct of its general business as a railroad company. They had with the laborer who was killed certain duties to perform as employees of the company, in the same general business. The conductor ran the train, the track-walker was to see that the track was clear of obstructions, and to signal when they existed; the laborer was engaged on his part in helping to keep the track in good order, so that the trains might run upon it in safety; they all must have known the dangers incident to their employment; they were fellow-servants of the same employer, and employed by it in the same general business. The deceased met his death through the negligence of the conductor and track-walker, and not that of the railroad company, which, therefore, is not responsible.

The exception taken to the order permitting the defendant to renew its motion for a nonsuit after introducing its evidence is not well taken, for if the motion had been denied and a verdict found for the plaintiff, it would have been the duty of the court to have set aside the verdict as not supported by the evidence. (Vanderford v. Foster, 65 Cal. 49.)

In cases where the facts are undisputed, the question of negligence is a question of law to be passed on by the court. (Glascock v. C. P. R. R. Co., 73 Cal. 137, and cases cited.)

The judgment of nonsuit was correct, and the order' granting a new trial should have been refused.

For these reasons we advise that the order appealed from be reversed,

Belcher, C. 0., and Hayne, C., concurred.

The Court. —For the reasons given in the foregoing opinion, the order appealed from is reversed.