Conlin v. San Francisco & San Jose Railroad

By the Court, Crockett, J.: There is but one question presented for our consideration on this appeal, to wit: whether or not the Court erred in refusing three instructions to the jury requested by the defendant. The plaintiff insists that the instructions were properly refused, if for no other reason, because they were not pertinent to any issue raised by the pleadings. It becomes necessary, therefore, to ascertain with precision what the issues were.

[407]The complaint avers that the defendant is a corporation, and is the owner of a railroad, with the cars, engines, and other appurtenances belonging thereto; that the plaintiff was a hired laborer in the employment of the defendant, and was employed to perform such labor on and about the railroad as the defendant or its agents should require of him; that he w-as ordered to work and did work at and near the defendant’s yard, in the City and County of San Francisco; that while so employed, “the defendant caused plaintiff to be ordered and required to move a certain car belonging to defendant from one point to another, along said defendant’s track, with as much haste as possible; that the usual and proper mode of moving said car was by means of a crank, handle, or winch, placed upon said car, and connected with certain machinery contained in a box closely covered and screwed down in a manner entirely to conceal the same from view, to move which car by said means it was necessary to get inside the same.” The complaint then avers that the plaintiff proceeded to execute the order, got into the car, and was moving it by means of the winch, in the due discharge of his duty, when the machinery gave way and flew out of gear, in consequence of which he was struck by the winch with great violence and thrown from the car across the track, by reason of which he suffered great bodily injury. The complaint further avers that the machinery of the car was 'wholly out of repair, unsafe, and unfit for the use to which the plaintiff was ordered to apply it; that it was unskillfully and defectively constructed, and that at and before the time when the plaintiff was ordered to use it, as stated, the defendant and its agents had full knowledge of the defective construction of the car and of the unsafe condition of the machinery, and willfully concealed these facts from the plaintiff, who was entirely ignorant of them, and who was not guilty of any negligence, carelessness, or want of skill in the use of the car or machinery. The action is to recover damages for these injuries.

The answer admits that the defendant owned the railroad,