There are three propositions upon which a rehearing of this cause is asked of this court, viz.: (1) That we fell into error in the statement that the amendment by the legislature of 1909 of section 625 of the Code of Civil Procedure, relating to the matter of the submission of particular questions of fact and special issues to juries, by which amendment trial courts are given discretion as to the matter of the submission of such questions and issues, was in force at the time of the trial of this action; (2) that this court is mistaken in the declaration "that there was no evidence which would warrant the submission to the jury of the defense as to negligence of a fellow-servant"; (3) that this court ignored the proposition contended for by the defendant, that there is "no evidence sufficient to show any causal connection between the negligence found by the jury to exist and the plaintiff's injuries," the contention being urged in the petition that the evidence affirmatively showed that there was no such causal connection.
1. As to the first point, we confess that we were in error in the declaration that section 625 of the Code of Civil Procedure, as amended in 1909, had taken effect and was in force at the time of the trial of this action. We now find, upon a closer examination, that the amendment was approved on the sixth day of March, 1909, but, as no other time was fixed in the act amending the section, the amendment, under the terms of section 323 of the Political Code, did not go into effect until the sixtieth day after its passage. The trial of this action was commenced and completed before the expiration of that period, and the amendment was, therefore, not in force at that time.
But it is plainly manifest, if our conception of the issues presented by the complaint and of the effect of the answers *Page 58 returned by the jury to certain particular questions of fact, considered in connection with their failure to answer certain other questions, as explained in the original opinion, be sound, then it became immaterial whether the section as it stood prior to the amendment or as it stands as amended was in force and applicable at the time of the trial of this action. In our original opinion, although mistaken as to the fact of the force of the amendment at that time, we tried to make this proposition clear. At any rate, the necessary effect of our views upon this point was that it was a matter of indifference, under the circumstances of the case, whether the original or amended section was applicable. If the jury had answered favorably to the defendant all the particular questions of fact bearing upon the issue as to the defective trolley-pole, there would have been no inconsistency between such answers and the general verdict, since, as is conclusively shown by the record, the general verdict was founded solely on another and different issue of negligence tendered by the complaint. After the return of the general verdict, with the answers to the particular questions of fact involved in the last-mentioned issue of negligence, said answers fully supporting the general verdict on that issue, it became wholly unnecessary to further consider the action of the jury on the particular questions of fact involved in the issue to which the general verdict could obviously have no relation. That issue was entirely eliminated from the case by the jury, and thus, figuratively yet truly speaking, it became a cadaver into whose lifeless veins no amount of blood could be injected by means of answers to interrogatories bearing thereon that could restore to it the power of respiration; hence, as stated, it became wholly immaterial whether the questions to which the jury were unable to formulate and return answers were answered or not answered, or how answered, so far as is concerned any effect any answers which might have been given might have upon the verdict as returned. See Pigeon v. Fuller, 156 Cal. 696, 701, [105 P. 976], where this question is exhaustively considered.
2. After a careful re-examination of the record, we are satisfied with the conclusion heretofore arrived at that there was no evidence to which the requested but rejected instructions relating to the fellow-servant defense pleaded in the *Page 59 answer are applicable. Counsel do not claim that testimony addressed to that defense was offered by the defendant, but the contention is that whether the motorman, whose instructions as to the manner of performing his duties the plaintiff was ordered by the general foreman to obey, was a fellow-servant of the plaintiff in the technical sense of that term or a vice-principal of defendant in his relation to the plaintiff, "depends upon the proper construction of the evidence relating to plaintiff's age and experience, and whether he received sufficient warning or instruction," and that, therefore, it was for the jury to determine from the evidence addressed to that fact whether his age and intelligence "were sufficient to give him the discretion necessary to the discharge of his duties as trolley-tender," or, "being inexperienced, he had received sufficient warning and instruction." It is argued that these facts, proved, if at all, by evidence produced by the plaintiff, were reasonably susceptible of deduction from the evidence so received, and it is further argued, had the jury found that the plaintiff either had sufficient intelligence and experience or was warned as to his duties and the hazardous character thereof, the defense of fellow-servant would have been unquestionably established. Therefore, it is insisted, the court seriously erred by refusing to submit to the jury the question whether Kleupfer, the motorman, was a fellow-servant of the plaintiff. We think that no question can arise from the evidence that the motorman, having been delegated by the general foreman of construction, of whose authority as an agent or vice-principal of the defendant in the transaction with the plaintiff we entertain no doubt, to direct the plaintiff in the matter of the performance of his duties, thus became and stood toward the plaintiff as more than a mere fellow-servant. In other words, we think the evidence fairly shows that, as to his relation to the plaintiff, the motorman was placed squarely in the shoes of the defendant by one having the authority to put him in that position.
But, in the light of the action of the jury, as shown by their general verdict and their answers to the interrogatories relative to the issue of negligence involved in the omission of the defendant to warn the plaintiff of the hazardous nature of his employment, we are unable to perceive in the question whether the motorman was a fellow-servant of the plaintiff *Page 60 any very great importance, so far as any influence it might exercise or effect it might have upon the particular act of negligence which the jury found was the proximate cause of plaintiff's injuries. Graham, who ordered the plaintiff to take the position of trolley-tender and to obey the directions of the motorman, was in no sense a fellow-servant. This proposition the court was at liberty to assume as a matter of law from the undisputed testimony. He was a general foreman of construction, or, in fact, a deputy under the general superintendent of construction for the defendant. In his capacity as general foreman, Graham had the authority to assign employees to the various employments involved in railroad construction for the defendant, or, if this is stating his authority too broadly under the evidence, he was at any rate undoubtedly given power by the superintendent of construction to assign the plaintiff to whatever employment he conceived the boy to be fitted for, or his own discretion might suggest. In the exercise of this authority, Graham clearly and unmistakably acted as the agent or vice-principal of the defendant. It was, therefore, his duty, acting for the defendant in this matter, to do that which it was incumbent upon his principal to do, viz., warn the plaintiff of the dangerous character of the duties of a trolley-tender. If he failed in this duty, then the fault or culpable negligence of the defendant and to which the cause of plaintiff's injuries must be traced lies, primarily, in such failure, and as it is this act of negligence which the jury found had caused the injuries, and as the act of negligence so found involves, essentially, the elements of youth, want of experience, incapacity in the plaintiff, and the duty of obedience on his part to his superiors in years, in experience and in authority, the very failure to warn him of the hazards of the duties to which he was assigned constituted the gist of the offending by the defendant. Therefore it seems to us, as already suggested, that it must be true that it can make little material difference, so far as sustaining this act of negligence is concerned, whether the legal relation existing between the plaintiff and the motorman, as coemployees of the defendant, was that of fellow-servants or of employee and vice-principal. In other words, the negligence of the defendant, which it was found directly caused the injuries to plaintiff, originated in and relates solely *Page 61 to the failure of the defendant to discharge the first duty it owed to a youth of inexperience and want of capacity assigned to the performance of duties beset by danger and peril to life and limb, and it seems to us that, under these circumstances, it must compel the laying down of not only an unreasonable but a barbarous rule to hold that the boy, ordered and expected, as to the manner of performing duties to which he was a stranger, to obey the person under whose immediate directions he was placed, should be held responsible for the mistakes or negligence of such person, even though the latter might have been a fellow-servant within the legal meaning of that expression; for, how could this inexperienced youth, lacking in that degree of judgment necessary to be exercised in the prosecution of occupations requiring some measure of skill, and which can ordinarily come only through experience, know when the directions given him by the motorman, and which he was ordered to follow, were erroneous or the result of mistaken judgment or of negligence? Most assuredly, it may be remarked, if the negligence charged against the defendant were based solely upon the alleged defective condition of the trolley-pole, or if the jury had ignored or found against the plaintiff upon the issues of negligence involved in the alleged omission of the defendant to warn the plaintiff of the dangerous character of the services which it required him to perform and founded its verdict solely upon the alleged negligent maintenance of a defective trolley-pole, then the question whether Kleupfer was a fellow-servant would be of vital and supreme importance. But, as has been shown, the situation here represents the very reverse of the supposititious case thus stated.
But let us now see, by a brief examination of the proofs, if it is not true that the court was justified in holding, as a matter of law, that the evidence incontrovertibly established the proposition that both Graham and Kleupfer were, in the transaction of which this action is the outgrowth, acting as vice-principals of the defendant, and that, therefore, the rejection of the "fellow-servant" instructions was clearly warranted.
The testimony shows without contradiction that the plaintiff was without previous experience in the line of duty to which he was put; that, in fact, he had never had any experience *Page 62 with or in the use of the mechanical appliances employed in the operation of trolley-cars; that he was warned by no one of the hazards of the occupation to which he was assigned on the car. The plaintiff testified that, when he went to work on the car, he had had no experience in the manipulation of the mechanical appliances employed in the operation of trolley-cars, and that by no one was he given any warning as to the dangers involved in the discharge of the duties of trolley-tender. The motorman, it will be recalled, remonstrated with Graham against putting a boy of the tender years and inexperience of plaintiff in the position of trolley-tender, saying, in effect, that a boy of plaintiff's age, wanting in experience in that line of duty, might meet with an accident. Upon these points, the plaintiff and the motorman were not contradicted. Indeed, the testimony of Graham, testifying for the defendant, corroborates that of the plaintiff. He testified that he ordered the boy to take the position and to discharge the duties of trolley-tender, and admitted that at no time did he warn or explain to the plaintiff the dangerous character of the duties which he had been ordered to perform. He further testified, as we have seen, that the superintendent of construction of the defendant sent the plaintiff to him (Graham) with instructions to put the lad to work at some employment, without designating the nature thereof, thus leaving to Graham, as the defendant's foreman of construction, the discretion of determining the character of the employment to which he might put the plaintiff. He admitted, and the fact is nowhere disputed, that he placed the boy as trolley-tender under the direct control of the motorman, and gave the lad explicit directions to obey the orders of said motorman in the performance of his duties. Thus, it will be observed, the motorman was as to the plaintiff, as employee of the defendant in the capacity of trolley-tender, placed by the general foreman in the latter's position; that is, he thus became agent or vice-principal of the defendant. It is therefore very clear that the court was fully justified in holding as a matter of law that the evidence showed that both Graham and the motorman, so far as the plaintiff was concerned, were vice-principals of the defendant.
3. It is stated in the petition, as we have already shown, that this court in its former opinion ignored or failed to consider *Page 63 the contention that there is no evidence disclosing causal connection between the negligence found by the jury and the injuries sustained by the plaintiff. The negligence which the jury found had proximately caused plaintiff's injuries was fully considered in the original opinion, and it was there held, as we now hold, that the evidence was sufficient to support the finding of the jury that the direct cause of the plaintiff's injuries lay in the negligence of the defendant to warn him of hazards, connected with the discharge of his duties as trolley-tender, which were not obvious to a person of his age, understanding, and want of experience.
The theory upon which the defendant appears to insist that there is no causal connection shown between the negligence of which the jury found the defendant guilty and the injuries received by the plaintiff is that, in point of fact, the immediate cause of the injuries was the breaking of the trolley-pole.
But the important proposition here is not as to the particular manner in which or the immediate means by which the plaintiff received his injuries, but it is the fact that the defendant negligently put him to work in a dangerous place or where it was hazardous for a youth without experience and general capacity or proper warning to be employed in. These facts proved and the causal connection between the act of omission of the defendant and the injuries was at once established, unless some efficient, independent cause operating to arrest the said first or primary causation intervened. The means by which the plaintiff sustained the injuries — that is, the immediate circumstance that precipitated the injuries — cannot, in a case of this character, be said to have been an independent cause, so interrupting the operation of the original cause or wrong as to have destroyed causal connection between the latter and the injuries. By this we mean to be understood as saying that, unless the plaintiff here were shown to possess experience, judgment, and capacity, or, deficient in these qualifications, had been properly warned as to the hazards of the employment into which the defendant required him to enter, the mere manner in which he may have received his injuries would not constitute an independent cause which in law would have the effect of arresting the primary cause originating in the negligence of the defendant in properly *Page 64 warning him of the hazards of the employment or of the place in which he was directed to work. It is, of course, to be readily conceded that but for the breaking of the trolley-pole the plaintiff would not have been injured at all, but the negligent act which made possible the accident to the trolley-pole and the consequent injuries to the plaintiff had already been committed. In brief, the circumstance of the breaking of the pole constituted only a concurrent cause of the injuries, and it can argue nothing against the position, sustained by the undisputed testimony in this case, that the original wrongful act of omission on the part of the defendant was the primary act of negligence producing the injuries and ceased not in its operation from its inception until its lamentable culmination. "The original act of negligence, the primary causation," says Mr. Justice Henshaw, in the case of Merrill v. Los Angeles Gas Electric Co., 158 Cal. 499, [139 Am. St. Rep. 134,111 P. 534], wherein the precise question in hand is very learnedly considered and discussed, "may be in its nature so continuous that the concurrent wrongful act precipitating the disaster will in law be regarded not as independent, but as conjoining with the original act to create the disastrous result." The primary causation here could not, by its very nature, be otherwise than continuous, for it was the very germ from which the ultimate damage developed and without which there would perhaps have been no damage. Its wrongfulness followed, permeated, and inhered in every subsequent act of the plaintiff in discharging his duties as a trolley-tender, and the breaking of the pole was only a necessary ally in the production of the disastrous result which, in all reasonable probability, it was, from its very inception, destined to bring about.
But much stress is laid upon the fact, as to which there is some evidence, that the plaintiff was unusually bright and intelligent and apt at acquiring knowledge, that as a messenger and a water carrier he had had opportunity to observe the manner of operating trolley-cars, and that, being bright and intelligent, thus he must have acquired sufficient knowledge of operating such cars to qualify him to intelligently perform the duties of trolley-tender. It may be conceded that the plaintiff was of unusual intelligence for one of his years and quick to grasp ideas, but there is no evidence, other than that showing ability to readily learn, that he did *Page 65 acquire any knowledge of the manner of handling with any skill the mechanical appliances used in propelling trolley-cars. Indeed, the only testimony that can even be construed into the statement of a fact justifying the theory that the plaintiff was, in the absence of specific instructions and warning on those lines, intelligent enough to exercise sound or mature judgment in the discharge of the duties of trolley-tender or to appreciate and realize the hazards thereof, is that portion of Graham's testimony wherein he stated that he first asked the boy if he thought he "could fill the job," and to which question the plaintiff answered affirmatively. But this testimony falls far short of showing, or even tending to show, that the boy appreciated or could appreciate without warning or instruction from older heads the great danger and hazards attending the discharge of the duties of trolley-tender on a work car. Indeed, in our opinion, if the answer of the boy tends to show anything of importance at all, it is that he did not realize the difficulties and hazards of the position, otherwise he would not have so readily expressed confidence in his ability to perform duties, obviously more or less difficult, even with an inexperienced adult, with which he had had no previous experience, and thus much more strongly is the reason emphasized for the necessity for giving him proper warning and instructions before he entered upon the performance of the work. But, in any event, the statement of the plaintiff that he could perform the service did not absolve the defendant from the duty of fully and clearly instructing and warning him as to the hazards of the new duties which it had ordered the boy to perform. The plaintiff's youth was apparent and his want of experience known to the defendant, and the law will not permit it to excuse its negligent failure to perform its duty by the plea that the boy said or thought he was fully capable of discharging the duties of a trolley-tender. It is, in other words, the imperative duty of a master, when employing a youth of inexperience in the particular line of work upon which he proposes to place him, if such employment necessarily involves hazards to him who engages in it, to warn such youth of such hazards before the latter enters upon its exercise so that he may be fully able to appreciate and realize the hazards to limb and life he is thus to be put *Page 66 up against, and a failure to perform this duty under the circumstances indicated constitutes culpable and actionable negligence.
We have thus considered the petition for a rehearing inextenso because of the importance of the legal questions involved in this record, and, furthermore, because we desired to express our views upon those questions as fully and as clearly as we conceived to be necessary and possible.
We are firmly of the conviction, for the reasons stated in the former opinion as well as those herein ventured, that no substantial reason has been shown or exists for a reversal of the judgment and order, and therefore the petition for a rehearing is denied.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 10, 1912.