Dolan v. Sierra Railway Co.

GAROUTTE, J.

Action brought by a brakeman, an employee of defendant, for damages for personal injuries received while in the discharge of his duty. An engine, with tender in front, was traveling toward Cooperstown. By reason of a defect in the rails, the engine left the track and traveled about fifteen feet upon the ties, when it passed upon a bridge, or trestle, some ninety feet in length. This bridge went down with the engine, and plaintiff and others were injured.

Upon the part of plaintiff, it is claimed that the engine left the track because the rails were broken, and that they had been in such condition four or five days; it is further claimed that thereafter the engine traveled about fifteen feet upon the ties, when it passed upon a trestle, and went down because the trestle was improperly constructed. The court does not find it necessary to consider that branch of the ease bearing upon the defective rails. For, even conceding it to be true that the defective rails caused the engine to leave the track, still, if the trestle was defectively constructed, and for that reason the engine crashed through it, injuring the plaintiff, it may well be said that the defective trestle was the proximate cause of the injury.

The defendant was not required to use that degree of care in the construction of this trestle, in satisfying the demands of the law as to its duty toward this brakeman, that it was required to use in its construction, viewed from the standpoint of its duty toward a passenger upon its train. Reasonable care—that is, ordinary care—is the measure of an employer’s duty to his servants, in the selection of tools, materials, etc., with which and upon which the servant is to labor. It therefore follows that if defendant exercised ordinary care in the construction of this trestle,—that is, if it was built in the man

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ner that an ordinarily prudent man would have built it, if he himself had intended to use it in the way this plaintiff was using it,—then defendant performed its full duty toward its servant.

(Brymer

v.

Southern Pacific Co.,

90 Cal. 496.) In the light of this legal principle, the court is brought to a consideration of the evidence bearing upon its construction. And before a new trial can be ordered upon the ground that the evidence is too weak to show a failure of duty toward this plaintiff in its construction, this court must be able to say, as matter of law, that, under the evidence, ordinary care was used in its construction. Tet, when the evidence is examined upon the question, a direct conflict upon this point appears. By appellant’s brief the credibility of plaintiff’s principal witness is attacked. But his credibility was a matter essentially for the jury to pass upon, and it would be an exceptional ease where this court would cast out evidence from the record, with the stamp of falsehood upon it, after twelve men, duly convened under the law to test its credibility, had given it faith and credit. It therefore follows that the evidence of the witness Buck as to the construction of the trestle will be credited by this court, and, so credited, it supports the verdict of the jury. And upon this question it is immaterial that the record discloses other evidence conflicting with his testimony.