Sessions v. Southern Pacific Co.

SHAW, J.

This is an action to recover damages arising from the death of Charles A. Sessions, alleged to have been caused by the negligence of defendants. The plaintiffs are, respectively, the widow and the only child of the decedent. They recovered judgment for five thousand dollars in the court below. In addition to the general verdict the jury made answer to certain questions of fact. The defendants moved the court under section 663 of the Code of Civil Procedure for judgment in their favor upon the answers to these questions.

[601]

The court denied the motion. The defendants’ motion for new trial was also denied. From the judgment and from these orders the defendants appeal. The verdict and judgment were against the Southern Pacific Company alone. It would seem therefore that the defendant, Cole, is not aggrieved and has no right of appeal, but, as the objection is not raised we will not consider the question. The appeal from the judgment was taken more than six months after it was entered. This court therefore has no jurisdiction thereof and that appeal must be dismissed.

In support of the appeal from the order denying the motion for a new trial, it is contended that the verdict is not sustained by the evidence and that the court erred in giving and refusing instructions and in rulings upon the admission of evidence. In view of our conclusion as to the sufficiency of the evidence to sustain the general verdict and one of the special findings it will be unnecessary to consider the appeal from the order refusing to enter judgment for the defendants or the rulings upon instructions and upon the admission of evidence.

The defendant company was operating a railroad running from the Oakland mole in Alameda County, through the city of Fresno to Los Angeles. At the time of his death, December 20, 1902, Sessions was on board one of the company’s passenger trains known as the “Owl,” on a trip from Oakland to Fresno. At Byron station another train operated by the company ran into the rear coach of the “Owl” train and Sessions was killed by the collision. The complaint alleges that Sessions had paid for his passage and was riding as a passenger on said train. The principal controversy at the trial and upon this appeal is over the question whether he did sustain that relation to the company or was a trespasser on the train.