Forrest v. Southern Pacific Co.

[248]

HALL, J.

Plaintiff, as the widow and sole heir at law of James Forrest, brought this action to recover damages for the death of her said husband, -caused by the collision of two-railroad trains of defendant, upon one of which said James-Forrest was employed as the locomotive engineer.

The .train upon which decedent was employed was known as train No. 21. The train with which it collided was known as train No. 2089. The collision occurred between Felton station and Big Tree station.

Appellant and respondent agree that the collision and death of Mr. Forrest were the result of the negligence of a brakeman employed by defendant, one Jesse Manning. The point upon which appellant and respondent do not agree is as to-whether or not at the time of the accident the said brakeman was employed, within the meaning of section 1970 of the Civil Code, as amended in 1907, upon a railroad train other than that on which Forrest was employed.

The pertinent part of the statute under which it is claimed that defendant is liable for the death of engineer Forrest is. as follows: “An employer is not bound to indemnify his employee for losses suffered by the latter ... in consequence of the negligence of another person employed by the same employer in the same general business; . . . provided, nevertheless, that the employer shall be liable . . . when such injury results from the wrongful act, neglect or default of a coemployee . . . employed upon a railroad train . . . other than that upon which the employee is injured is employed.”

There is no dispute as to the facts in the case, which areas follows: Defendant operates a railroad from Boulder Creek to the city of Santa Cruz. Felton station is between these points, and between Felton station and Santa Cruz is Big-Tree station. Between Big Tree station and Santa Cruz isFelton Junction, from which a spur track extends to Old Felton. Shortly before the collision occurred train No. 21,. w'hich was a work train, and another work train No. 15, were-lying on sidings at Felton station, intending to pass to Felton Junction, but waiting for the regular passenger train from Boulder Creek to Santa Cruz, designated as No. 516, to pass, on its way to Santa Cruz, while an extra work train designated as No. 2089 was lying upon the siding at Big Tree.