Barboza v. Pacific Portland Cement Co.

SLOSS, J.

The plaintiff, suing as administrator of the estate of Caesar Augustus, brought this action to recover damages for the alleged negligent killing of his intestate. The trial resulted in a verdict and judgment in favor of the plaintiff for twenty-five hundred dollars. The defendant appeals from the judgment and from an order denying its motion for a new trial.

The defendant corporation was engaged in the manufacture of cement. Its plant, which was located at a point called Cement, was connected by a spur line or track with the main railroad line of the Southern Pacific Company, the point of junction being at the station of Tolenas in Solano County. The defendant operated a train of ears between Cement and Tolenas.

The deceased, Augustus, was a laborer employed by the Southern Pacific Company. He was engaged in repairing the track near Tolenas station, when he was struck and killed by defendant’s train which was made up of a number of cars propelled from the rear by a locomotive.

The complaint was in five counts, each of which set up a separate charge of negligence. Among these were averments that the defendant negligently backed its train over Augustus at a high rate of speed without giving him any warning; that it negligently failed to ring a bell or blow a whistle; and that it negligently failed to maintain air brakes on the train of cars.

There was evidence tending to show this state of facts. Augustus, who was one of a gang of several men working under the direction of a foreman, was engaged in driving

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spikes. He was standing midway between the two rails with his back to the defendant’s train. So far as the evidence shows, the position thus occupied by him was proper for the accomplishment of the work being done. The defendant’s train, which was not running on schedule time, had come from Cement, passing, on the way, the men at work on the spur track near the station. This spur turned into the direct line of the Southern Pacific at a point some two hundred feet west of the station building and freight platform at Tolenas. Beyond the station there were various switches and tracks running some hundreds of feet to the east of the freight platform. The train passed through to the easterly end of the yard and after switching from track to track, picking up empty cars, eame back to the station and stopped there. The engineer then started his train westward, propelling the train of cars ahead of his engine on to the track leading to Cement. When he had proceeded some fifty or sixty feet beyond the switch leading to that track and some two hundred and fifty feet from the station, the car at the head of the train and farthest from the engine struck Augustus. No bell was rung nor was the whistle blown. There was a brakeman on a car next the engine and another on the third car from the forward end of the train. From this position the second brakeman saw that the deceased and the others were in danger and signaled the engineer to stop, but it was then too late to bring the train to a complete standstill in time to prevent the injury. There was evidence that the train, at the time it was bearing down on the deceased, was running at the rate of eight miles an hour. A through train of the Southern Pacific Company was at the same time passing upon the main line track and the noise produced by this through train was, as the jury may have well inf erred,. sufficient to prevent the men working on the track from hearing the approach of defendant’s train. The engineer in charge of the latter had seen the men at work when he had brought his train into Tolenas and knew, or might have known, that they were still at work when he started to return. The point where plaintiff was working was within the limits of the Southern Pacific yard at Tolenas, but it was not at the end of the yard equipped for switching work, or in which the switching was usually done.