Holland v. Southern Pac. Co.

De Haven, J. This is an action brought to recover damages for personal injuries sustained by the plaintiff while in the employment of the defendant as a road-master. The injuries were the result of a collision between a locomotive engine and a construction train upon which the plaintiff was riding. The engine which came in collision with the train was then being used in the work of defendant, and was driven by an engineer named Mulligan, employed by the defendant for that purpose.

The complaint alleges that Mulligan, for some time prior to and up to the time of the collision, “ had been and was incompetent, reckless and grossly negligent in the performance of his duties as an engineer and . . . . employee of defendant,” and that defendant had notice of such incompetency and negligence for more than one month prior to the date of plaintiff’s injury.

The case was tried by a jury, and a verdict returned in favor of plaintiff for the sum of seven thousand five hundred dollars; and judgment was rendered in the superior court in accordance therewith. The defendant appeals.

The plaintiff and Mulligan were fellow-servants, and, in order to entitle plaintiff to the verdict and judgment recovered in the superior court, it was incumbent upon him to show, not only that the injury he received was proximately caused by the negligence of Mulligan, but also that the latter was incompetent, and that there was negligence upon the part of the defendant in employing him in the first instance, or in retaining him in its service after notice of his incompetency and the alleged careless and reckless manner in which he had discharged his duties as an engineer. It is not claimed by the plaintiff that the defendant failed to exercise reasonable and ordinary care to ascertain whether or not Mulligan was a competent engineer at the time of first employing him, but he contends that the defendant was guilty of negligence in retaining him as an engineer after notice that he was careless and reckless in the dis[243]charge of the duties incident to that position, and, therefore, an unfit person to serve in such capacity. The jury so found, and the defendant insists that the verdict is not supported by the evidence, and the question thus presented is the only one necessary to be considered at this time.

It was shown upon the trial that some three or four months prior to the collision resulting in the injury complained of by the plaintiff, Mulligan was the engineer in charge of one of defendant’s trains running between Marysville and Oroville, and upon that occasion ran a train between Marysville and Moore’s station, a distance of twelve or fourteen miles, in forty minutes, while the schedule time between these points was one hour. The plaintiff himself testified that in making about one and one-half miles of this run, over a portion of the road which was level, the train was driven at a speed of about forty or forty-five miles an hour; and he further testified that this road was not considered safe to run fast upon, because it was laid with light iron rails. There was but one train a day run over this road, but hand-cars used by construction-men might have been upon the track at this time, and under the rules of defendant would have had the right to remain there until within ten minutes of the schedule time for the arrival of the regular train. This run was made in daylight, and without accident or injury to any one. The plaintiff, although requested by Mulligan not to do so, notified the proper officers of defendant of the manner in which this train was run upon the occasion just referred to.