Brown v. Central Pacific Railroad

California Supreme Court Jan 3, 1887 No. No. 11,383Published

Before: Searls

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Holding. The court held that an employer is liable for the negligence of an employee toward a co-employee only if the employer failed to exercise ordinary care in the selection or retention of the culpable employee. The court further held that the failure of a jury to return requested special findings is waived if the verdict is received without objection.

Issues

Whether the defendant was liable for the death of an employee caused by the negligence of a co-employee.
Whether the deceased employee was guilty of contributory negligence.
Whether the trial court's instructions to the jury were erroneous.
Whether the jury's failure to return special findings invalidated the general verdict.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The reception and entry of verdict by the court and counsel without objection amounted to a waiver of the request for findings upon the particular questions of fact.”

Synopsis

Railroads—Contributory Negligence.—Where, on the Trial of an action for damages against a railroad company brought for the death of a train conductor in defendant’s employ, it appears that such conductor was in absolute control of a long freight train; that there were three brakemen who were under him, and whose positions, respectively, were on the front, middle and rear of the train; that the middle brakeman, when the train was leaving the last station at which it stopped before the accident, was about to go to his position, when he was stopped by the conductor to assist him in cheeking waybills, and remained in the baggage-ear after such checking was finished, and until the accident happened, there is evidence of negligence in the conductor; but the verdict for plaintiff may be sustained, where the instructions of the judge are clear, on the theory that the jury considered that the negligence of the conductor did not contribute proximately to produce the accident.

Trial—General or Special Verdict—Omission to Make Special Findings.—When, on the trial of an action for damages, the jury are instructed that they may return either a general or a special verdict, but, if a general verdict is returned, they must also make written findings on the particular findings of fact submitted to them in writing, and the jury return a general verdict for the plaintiff, without passing on the special facts submitted, which is received and entered by the court without objection by counsel, the defendant cannot object to the verdict, on appeal, as irregular, as the reception and entry of the verdict by the court amounted to a waiver of the request for the special findings.1

SEARLS, C. This is an action to recover damages by plaintiffs, the widow and children, as heirs, of Gilman George Brown, deceased, for the. death of the latter, through the alleged negligence of defendant, a railroad corporation. Plaintiffs had a verdict and judgment for ten thousand dollars and costs, from which judgment, and from an order denying a new trial, defendant appeals.

The decedent of plaintiffs was a conductor on the railroad of defendant, and, as such, left Los Angeles on the evening of April 7, 1877, in charge of a mixed train, consisting of over twenty cars, drawn by a locomotive engine in charge of Prank Wilson as engineer. While proceeding on its way, about midnight of the same day, the train, when at or near the foot of a slightly descending grade, broke in two, or parted; the front part with the engine running a considerable distance before the accident was discovered. When discovered, the engineer, in obedience to the signal of the only brakeman left upon the front part of the train, reversed his engine and backed up, in doing which he collided with the still advancing [732]rear portion of the train, partially wrecking the latter, and killing the conductor, Brown.

The gravamen of the charge against defendant, as contained in the complaint, is that, through its negligence, carelessness and default, it employed, as engineer upon its train, one Frank Wilson, an unsafe, unskillful, untrustworthy and incompetent person, of whose unskillfulness, untrustworthiness and incompetency defendant had notice; and that by reason of the negligence, carelessness and lack of skill of said engineer, the accident occurred, whereby Brown was killed. The answer denies all negligence on the part of defendant, and avers that the accident and its consequences were due to the negligence of Brown, the deceased conductor, in not having his brakeman at their posts, etc.

Plaintiffs’ intestate, as conductor of the train, and Frank Wilson, the engineer, by whose negligence it is claimed Brown was killed, were eoemployees in the same general business. It follows that defendant could only be liable for the negligent act of the engineer whereby deceased lost his life, upon the theory that it neglected to use ordinary care in the employment or retention of such engineer: Hogan v. Central Pac. R. Co., 49 Cal. 130.

“An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business, in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee”: Civ. Code, sec. 1970; Sweeney v. Central Pac. R. Co., 57 Cal. 15.

Brown v. Central Pacific Railroad

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