Vizelich v. Southern Pacific Co.

HENSHAW, J.

—This action was to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant. The cause was tried before a jury, which rendered a verdict for plaintiff. From the judgment in his favor which followed, and from the order denying defendant’s motion for a new trial, these appeals are prosecuted.

Plaintiff averred that he was in the employ of the defendant at the time of the accident. He was employed as a brakeman

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and an extra switchman in the railroad yards at Stockton. At the time of the accident he was riding in the cab of a switch engine. This engine collided with a train standing upon the sidetrack. The water-tank of the switch engine moved forward and crushed the leg of plaintiff, necessitating amputation. It is charged that the cause of the accident was the negligence of the defendant in improperly maintaining its track and switch at the place of the accident, and also, in a separate count, the imperfect and defective condition of the water-tank upon the switch engine, which was negligently and insecurely fastened.

Upon the trial it was made to appear without conflict in the evidence that the switch engine had been used in and about the yard for some time, and that in its ordinary use no injury had ever resulted from the alleged insecure fastenings of the water-tank. It was also made to appear without dispute that ¡the collision was caused by the negligence of a brakeman in manipulating the switch.

Of the many propositions urged by appellant the following is the only one which need receive attention, for it is determinative of the controversy: In this discussion it will be assumed that the plaintiff satisfactorily established his relationship to the company as its employee, and it will further be assumed that the evidence was sufficient to show that the water-tank of the engine was insecurely fastened. As to the allegation of the negligent condition of the track and switch, we think it clear that the evidence would not support a finding in plaintiff’s favor upon that ground. The trial judge was of the same opinion, and little point is made of this matter in the briefs.

The case, then, is one where an employee seeks to recover for ■personal injuries sustained by him by reason of the defective condition of the appliances furnished to him by the employer. In such cases he can recover only when the defective machinery or appliance was the proximate cause of the injury. Ordinarily, this question is one of fact for the jury under'proper instructions, but where the facts are not in dispute it may become a question of law for the court. If the question is debatable, one upon which reasonable minds may take opposing views, it should, of course, be submitted to the jury, but where it is clear and unmistakable that the proximate cause is one other than