Soares v. Davis

[487]

NOURSE, J.

Plaintiff, as administratrix of the estate of 'Joseph C. Soares, recovered judgment in the sum of $1,500 as damages for his death caused by being struck, by a railroad train operated by the defendant as agent for the United States government under the federal transportation act of 1920 (U. S. Comp. Stats., Ann. Supp. 1923, see. 100713/4). The ease was tried without a jury and the trial court returned findings to the effect that the death, of Soares resulted from his being struck by a locomotive attached to a train and operated by the defendant and that it was caused by the negligence of the defendant, “by his negligent operation, direction and control of said engine and coaches and said railroad track.” The defendant had specially pleaded the defenses of contributory negligence and assumed risk, but upon these issues no findings were made.

Upon this appeal appellant assigns as error the failure of the trial court to find on these two special defenses, and error in the findings upon the defendant’s negligence. It is not necessary to discuss the points relating to the court’s failure to find upon the two special defenses because a review of the evidence conclusively shows that the finding upon appellant’s negligence is not supported.

Briefly, the facts are that the deceased was employed in a section gang of seven men under the charge of a foreman and at the time of the accident was working on the railroad tracks of the Southern Pacific Company at a point just outside of the city of Santa Clara. He was working at a point about 250 or 300 feet from the rest of the section gang as the train operated by the appellant approached. The foreman, who was stationed near the body of the section gang, warned them to get out of the way of the train and also called to the deceased warning him of the approaching danger. The deceased was looking directly at the foreman at the time this warning was given and no contention is made that he failed to hear the warning. In addition to this the engineer of the train gave several loud sharp whistles of warning and the bell upon the engine was automatically ringing throughout the approach of the train and until after the deceased was struck. All the evidence goes to show that the deceased was in possession of all his faculties of seeing and hearing, that he could not have failed either to have heard or seen the various warnings of danger which were