Benson v. Southern Pacific Co.

WILBUR, J.

This is an appeal from judgment and order denying a new trial. Plaintiff sued the defendant company and its motorneer to recover damages for the death of her infant child, caused by a train of the defendant company, "operated by the defendant motorneer. The verdict in the case was against the defendant Southern Pacific Company, and no reference was made therein to the other defendant, the motorneer. The defendants appeal, and it is claimed that the judgment and order must he reversed because of the failure to find upon the issue of liability of the defendant motorneer. It has been held in this state that a verdict of the jury against one of two defendants is not a verdict in favor of the other defendant

(Rankin

v.

Central Pacific

[779]

R. Co.,

73 Cal. 93, [15 Pac. 57];

Benjamin

v.

Stewart,

61 Cal. 605), but as to him is merely a failure of the jury to find upon the issues. Appellants’ claim of error is based upon the contention that the only liability alleged in the complaint or shown on the trial on the part of the defendant company is the liability for the negligence of its motorneer upon the rule of

respondeat superior,

and that if‘the jury were unable to agree that the motorneer was guilty of negligence, it could not properly hold his employer liable. The defendant company bases its claim that the error was prejudicial, in part, upon the doctrine that where it is held responsible for the negligence of its employee, it has an action over against the employee to indemnify itself for such loss, and is. therefore interested in the determination of that question. As is well stated in appellants’ brief: “The initial premise to be established by the appellant is that the two defendants herein sued are not joint tort-feasors in the generally accepted sense. Where the liability of one defendant is occasioned solely by the operation of law,