Walther v. Southern Pacific Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 771 The plaintiff is the widow of one Henry F. Walther, who, while being carried on a passenger train of defendant on March 28, 1907, was killed by reason of the derailment of such train and the consequent wrecking and demolition of the car in which he was being carried. The accident occurred in defendant's yard at Colton in San Bernardino County, and was caused by the train on which deceased was riding running from the main track into an open switch at a high rate of speed, estimated by the trial court to be between forty-five and fifty-five miles an hour, when, being unable to traverse the curve of the sidetrack, it was derailed. The switch had been left open by the switch foreman, who, with his crew, was working on the siding at the time, and who had neglected to keep himself advised of the whereabouts of the train, which was long overdue, and had left the switch open in violation of the rules of the defendant. Deceased was an employee of defendant, but at the time of the accident and for some months next preceding the same was absent on leave. At the time of the accident he was returning from a journey to an eastern state to his home in California. He was riding on a pass, good until March 31, 1907, which had been issued to him by defendant for the purposes of his journey. It was found by the trial court, in accord with a stipulation of the parties, that the pass was issued to him as an employee, "in accordance with the long-established practice of the company, and one well known to its employees, to furnish passes from time to time to its employees." There was no other consideration for such pass. It contained the following statements, subscribed by the deceased: "This is a free pass based upon no consideration whatever. The person accepting *Page 772 and using this pass, in consideration of receiving the same, agrees that the Southern Pacific Company shall not be liable under any circumstances, whether of negligence — criminal or otherwise — of its agents or others, for any injury to the person, or for any loss or damage to the property of the individual using this pass; and that as to such person the company shall not be considered as a common carrier, or liable as such." This action was brought by plaintiff to recover the damage caused her by the death of her husband, being based upon section377 of the Code of Civil Procedure, which provides that when the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such person. In her complaint, she alleged that the accident and the consequent death of deceased were caused by the "gross negligence" of defendant, and these allegations were found by the trial court, which tried the case without a jury, to be true. Damages were assessed at the sum of eight thousand dollars, and judgment was given in favor of plaintiff for that amount. This is an appeal by defendant from such judgment. The record on appeal was filed in this court on March 29, 1910.