The record-union., 1891-03-31

rectly decided, the facts were very differ
ent from those in the case at bar.
In McCune VS.. Cal. s. r. r. Co., de-
partment decision, the defendant was en-
gagged in constructing railroad. The
plaintiff was injured by the negligence of
one Fisher, who was material agent and
train dispatcher for defendant. and had
charge of the moving of trains" The
negligence consisted in his carelessly
sending out a special train which collided
with handcar on which plaintiff and
others were riding, and injured plaintiff.
"A rule OF the company declared that no
extra engine, either with or without
train, unless i'll company with regular
train, would pass over any portion OF the
road except on an order from the material
agent or train dispatcher" The court
say: He represented the defendant; /;
was Vice-principal he. employed and
discharged men, and directed the move
ments of the trains. When he directed the
extra tram TO 60 up the road, the COM
pany directed it," Assuming this case not
to be in conflict with the numerous deci-
sions above noticed, it is clear that it is not
authority for appellant in the case at bar.
| The material man and train dispatcher
seems to have had control of the entire
business of constructing the railroad.
He employed and discharged men, and
moved all the trains at his own will,
| without any restraint. The defendant
seems to have ''abdicated'' in favor of
this general agent. But in the case at
bar the conductor was merely an ordi-
nary employe, who worked with other
certain duties to perform. He had
no power TO "direct the movement
of trains.'' He had no authority
to direct the movement of the particular
train on which he was employed, except
in accordance with the regulations and
| y, rlfrl rln,
defendant directed the work to be done.
Lie had no power to employ or discharge
men. It cannot be said that when he
| started the train before the schedule time
the company directed it, He was not
then acting for the defendant, but against
its express orders. He did not therefore
come within the doctrine Of vice-princi-
notwithstanding that there may be
caseS to which that doctrine would APP
| ply. Moreover, it was said, and we
think it was clearly intended to be de-
clded in Brown VS.. c. p. r. r. Co. (72
| Cal. 523) that the brakeman and con-
ductor on a railroad train are fellow
servants, and in Fagundes VS.. G. P. Z. r.
Co. (Supra) it was held that laborer,
| q track-worker and conductor were ali
| fellowsergants.
Our conclusion is that, on the facts of this
case as presented in the complaint. the
| deceased and the conductor were persons
CIl Dy tIlt StlilG cliDlONCE III the
same general business within the mean
ing of Section 1870 of the Civil Code, and
that, therefore, the defendant is not liable
for the death of the one caused by the
negligence of the other. Judgment af-
firmed MCFARIAND. T.
We concur:
De HAVEN, j.,
HARRISON, j.,
PATERSON, j.,
SHARPSTEIN, j.
Filled at San Francisco March "a, 1891,
Appeal from Superior Court, San Fran
cisco, Department No. 1-Eugene r. Gar
Der, Judge.
For appellant, E. D. Wheeler and Bar
clay Henley.
For respondent, n. e. Highton, II. c.
McPike and j. A. Cooper
DEPARTMENT TWO.
WHITE, Appellant,
VS.. mo 1923
WHITE, Respondent.
This is an appeal from an order made
after final Judgment directing the appel
lant to pay to the respondent the sum of
$500, for the purpose of paying certain of
her attorneys for professional services
rendered to her in the action.
The respondent moves to dismiss this
appeal upon the. ground, among others
stated, The order appealed from was
MADE after nnal Judgment, and no bill of
exceptions to the making OF said order
| was ever served, settled, allowed or
| fled"
| Ihe transcript on appeal herein pur-
| ports to show that certain affidavits and
testimony of witnesses were used upon
the hearing of the motion, which resulted
in the order appealed from, but there is
no bill OF exceptions in the record. In
the case OF Somers VS.. Somers, (Sl Cal.
! 60S.) the members of this court were di-
vlded as to the proper practice to be pur-
sued in authenticating the record on ap-
! peal from this class of orders, but since
then the court has adopted Rule 32.
which we think should be deemed as set
tling the practice, so far as relates to ap-
! peals taken since it went into effect and
this appeal having been taken since that
date, the rule is decisive of the question
arising on this motion. The rule is as
| follows: e'
I'm all cases of appeal to this court from
orders of inferior courts the papers and
evidence used or taken on the hearing of
the motion must be authenticated by in
cooperating the same in bill of eXcep-
tons, except where another mode of
authorization is provided by law"
| Appellant suggests a diminution of the
record so as to have the transcript herein
properly certified by the clerk of the
court below; but it is manifest that such
certificate could not supply the place of a
bill of exceptions, which is REQUIRED by
the rule just quoted.
Appeal dismissed; remittitur stayed for
| thirty days. DE HAVEN. J.
| We concur:
MCFARLAND, j.,
SHARPSTEIN, j.