Rodgers v. Central Pacific Railroad

Searls, C. This is an action to recover damages for the death of plaintiff’s son, claimed to have been caused by the negligence of the corporation defendant. Plaintiff had verdict ■which was set aside by the court below and a new trial granted. Plaintiff appeals from the order granting a new trial.

James McGregor Rodgers, the intestate of plaintiff, who was a servant of defendant and firemen on one of its locomotive engines, was killed in a train accident at China Gulch, in Shasta County.

An important question at the trial was, whether defendant was guilty of negligencé in the construction and maintenance of a bridge across said gulch, by the fall of which the train in question was precipitated into a chasm and decedent killed, or whether [608]the accident was due to an enormous downflow of water caused by what is familiarly known as a cloud-burst, and constituting what is designated as an “ act of God.”

The court below very properly instructed the jury in effect that if the accident was attributable to a “superhuman or irresistible cause” to an “act of God,” the defendant would not be liable, that as a general principle no man shall be responsible for that which no man can control, and then proceeded in his instruction as follows:—

“But if in addition to the act of God, so called, the intervention of man takes place, co-operating with it and commingling with it to any extent, however slight, and an injury then results, the injury is to be ascribed not to the act of God — which would constitute no defense in the case supposed—but to the act of man; and therefore, if the negligence of a human being concurs with the act of God and causes an injury, the party thus negligent would be responsible therefor.”

The objection taken to this instruction on the motion for new trial was that it did not discriminate between the different degrees of negligence, that it gave the jury to understand that if the act of the defendant in the slightest degree concurred with the act of God in producing the injury complained of, the defendant would be liable without regard to whether the negligence proven on its part was slight, ordinary, or gross.

The court below was of opinion defendant was only liable to its employee for want of ordinary care, and not for slight negligence, and therefore that the instruction tended to mislead the jury and was erroneous.