Fagundes v. Central Pacific Railroad

Foote, C. —The plaintiff brought this action to recover damages for the death of his son, caused by the alleged carelessness- of the defendant.

After the introduction of the evidence on the part of the plaintiff, the defendant moved for a nonsuit, which was refused. It then introduced evidence in its own behalf, after the conclusion of which a motion for a non-suit was again made and granted. The plaintiff then moved for a new trial, which the court allowed, from which the defendant appeals.

There is no conflict in the evidence.

[99]The deceased was a laborer employed by the defendant to remove snow and other obstructions from its track, and was under the immediate control of a road-master.

He had directed the former to take his place in the car having sleeping accommodations, in company with other laborers, to be transported by an expected train to another part of the road, in order that he might perform certain work which had to be done in clearing the track of snow.

The laborers were asleep in the car on a side-track, when a train which had to get upon that track, in order to permit a passenger train to pass, collided with the car in such a way as to cause a snow-shed to fall upon it, whereby the deceased was killed. The accident was primarily caused by a track-walker, by the name of Joe Rabbitt, who interfered with a switch with which he had no concern, turning the car-wheels in the wrong direction, and of the conductor of the train, perhaps, in not being sufficiently on the alert to prevent the intermeddling of Rabbitt. Conceding, without deciding, that the evidence was responsive to the issues made by the pleadings, the question to be determined is, whether or not the Central Pacific Railroad Company is responsible for the carelessness of the conductor and track-walker.

If they are to be held as the fellow-servants of the deceased, and engaged about the business of their common master, in the same general employment, then the company would not be responsible, unless the record shows that the defendant neglected to use ordinary care in the selection of the conductor and track-walker. (Civ. Code, sec. 1970; Stephens v. Doe, 73 Cal. 28; McLean v. Blue Point Gravel Mining Company, 51 Cal. 257; Fisk v. C. P. R. R. Co., 72 Cal. 42; Brown v. C. P. R. R. Co., 72 Cal. 523.) There is nothing in the evidence which tends to show any negligence on the part of the defendant in the selection of the employees whose carelessness caused the casualty.