Vaughn v. California Central Railway

McFarland, J. Pierce B. Vaughn, a young man about twenty-seven years old, was killed by an accident on the railroad of the corporation defendant; and this action was brought by his father and mother (as heirs) to recover damages for his death under section 377 of the Code of Civil Procedure. The verdict and judgment went for plaintiffs. Defendant appeals from the judgment, and from an order denying a new trial.

The jury, in addition to a general verdict, returned answers to a large number of special issues submitted to them; and appellant contends (among numerous other points) that the general verdict is in conflict with the findings on the special issues, and therefore cannot stand. We think appellant right in this contention. ■

Paragraph 4 of the complaint is as follows: —

“That on January 4, 1888, said Pierce B. Vaughn, while so engaged in such service of the defendant, was being carried upon a work train of defendant upon such railway in this county, when, owing to the negligent and defective manner in which the track and road-bed of such railway had been originally constructed and subsequently maintained by said defendant, and at a point about one mile west of North Cucamonga station, [20]the said road-bed was, and had been for many hours before, for a distance of thirty feet along the track, washed out, and by the negligence of the defendant, the same was so allowed to remain in an unsafe condition till the accident complained of occurred.”

Paragraph 5 is as follows:—

“That notwithstanding said unsafe condition of said track, the defendant, without exercising any care in the running of said train, and without exercising any care to discover the unsafe condition of its track, and by its negligence in the running of said train at a reckless and fast rate of speed along and over said defective track, caused said train to be wrecked and ditched at such washout, thereby, without any fault on the part of said Vaughn, causing said Vaughn to be instantly killed.”

An amendment to the complaint contains the following averments: —

“ 8. That at the time of said wreck and of the killing of said Vaughn, and continuously for more than ten days prior thereto, James McKenna was the section foreman of the defendant, and in that capacity bad charge of the defendant’s railroad track and road-bed where said wrashout and wreck occurred, and for several miles along the track on each side thereof, but that he was neither properly qualified nor competent, nor was sufficiently skillful, to perform his duties as such section foreman; and the defendant neglected to use ordinary care in selecting him as such section foreman.