Leahy v. Southern Pacific Railroad

Sharpstein, J. Jurors not having been drawn or summoned to attend the session at which this action was tried, the court was authorized to order a sufficient number to be forthwith drawn and summoned to attend court, or by an order entered in its minutes to direct the sheriff forthwith to summon so many good and lawful men of the county to serve as jurors, as might be required. (Code Civ. Proc. § 226.) The court adopted the latter method. This constitutes no error in law, nor even irregularity in the proceedings of the court.

The exception to the ruling of the court, on the defendant’s objection to evidence of the condition of the remains of the deceased, cannot be sustained.

On the question of defendant’s negligence there was sufficient evidence introduced by the plaintiff to justify the court in submitting it to the jury.

The motion for nonsuit was properly overruled.

Several instructions were asked by the defendant and refused by the court. But it does not appear that any exception was [152]taken. In the absence of an exception, none of said rulings can be reviewed here.

On the trial certain facts were established beyond controversy:

1. The plaintiff’s intestate, Leahy, was killed while in the ' employment of defendant as a brakeman on one of its freight trains.

2. There was a flaw or crack in the hub of the wheel, which said Leahy had to turn in order to set up the brake for the purpose of checking the movement of the train.

- 3. The hub of said wheel was rendered more liable to break by reason of said flaw or crack.

4. If it broke while the brakeman was setting up the brake there would be great danger of his being precipitated between two cars and killed.

The jury were justified in finding that the death of said Leahy was caused by said wheel breaking while he was in the act of setting up the brake.

Defendant s counsel, however, insist that the flaw or crack in the hub of said wheel was invisible so long as said wheel was in place, and that there is no evidence which tends to prove that said wheel was not sound and safe when placed in position ; and that the evidence shows that defendant employed a competent person to 'inspect said wheel and that the same was inspected by him as often as a due regard for the safety of the brakeman required that it should be. The plaintiff introduced some evidence which tended to show that said flaw or crack could not have been difficult of discovery when said wheel was in place; and the jury had before it the broken wheel, as well as other wheels of the same kind, and it is impossible for us to say how much the jury may have been aided thereby in determining whether said flaw or crack might have been discovered by the exercise of due diligence on the part of defendant, Upon that question we think there is a substantial conflict of evidence.