San Francisco & Sacramento Railway Co. v. Industrial Accident Commissionn

THE COURT.

A petition for hearing herein was

granted by this court after decision by the district court of appeal. A more thorough consideration, however, of the legal question presented in the petition has convinced us that the law of the case is correctly expressed in the opinion prepared by Mr. Justice Nourse of the district court of appeal. It is, therefore, adopted as the opinion of this court. It is as follows:

“Certiorari

to review an award of the Industrial Accident Commission. The petitioner owns and operates the ferryboat ‘Ramon,’ used for the purpose of transporting its electric trains over the San Joaquin river. These trains are operated by means of an overhead electric trolley terminating at each wharf in a V-shaped contact point so that when the ferryboat is docked the train can readily take up the electric current and proceed on its way. These contact points had frequently been bent out of place through careless docking of the ferryboat and the captains had been specifically instructed to ‘log’ the damage and to immediately report it to the line repair staff for repair. Captain Ough was one of three captains working on separate shifts and as such was in full charge of the ferryboat during his period of service. One of these contact points having been ‘jammed’ Captain Ough left his boat and went on the wharf to repair it. He failed to take the precaution of turning off the current, but climbed a ladder to the place where the live wires were attached, and, coming in contact with the current, was thrown to the wharf and killed.

“At the hearing before the Commission the defendant (petitioner herein) contended that because the work of repairing the electric lines was of a technical and hazardous character it had provided a specially trained staff of electric linemen for that work; that the captain had been given express orders to call upoh these linemen when repairs were needed, and that when he left his ship and attempted to repair the contact point on the wharf he was

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acting beyond the scope of his employment. At the close of the hearing a continuance was granted at the request of those seeking compensation for the death of the captain to enable them to produce some evidence tending to show that the captain was acting within the scope of his employment when the accident occurred. Some time thereafter the parties reached an agreement of‘compromise for the sum of $1,000. When this was filed the Commission forthwith ordered the cause submitted, and, without notice or hearing, entered judgment against the defendant for the sum of $5,150. A rehearing was denied the defendant and it prosecutes this application on the ground that there is no evidence to sustain the award.