The record-union., 1891-03-31

what dates the moneys were respectively
received or expended by the defendants.
We find no error in that portion of the
Judgment from which the defendants
have appealed, and it is, therefore,
affirmed. HARRISON, j.
We concur:
DEHAVEN, j.,
SHARPSTEIN, j.,
PATERSON, j.,
GAROUTTE, j.
Filled at Sacramento, March 10. 1S9I.]
Appeal from Superior Court of Placer
Coungy-B.F. Myres, Judge.
For appellants, d. NJ. Deimas and Rob
ert j. Deviin.
For respondent, Hale & C1aig.
IN BANK.
KATE CoNdRAvE Er AL, Plaint-
IFS and Appellants,
VS.. No.13,395
SOUTHERN PACIFIC r. r. Co.,
Defendant and Respondent.
This action was brought by the
widow and infant son OF James w. Con-
grave, deceased, to recover damages for
the death OF the latter, who was killed by
an accident on railroad train of the de-
tendant. A demurrer to the complaint
was sustained by the court below; and,
plaintiffs declining to amend, Judgment
went for defendant From this Judgment
plaintiffs appeal.
The complaint AYERS that said Con-
grave. deceased, was u brakeman in de-
fendantS employ upon train which left
the town of Truclee on March 70, 1888,
and .st;Yted westward. destined for Slcra-
mento City. II is averred, in general
terms, that the deceased, IS such brake
man, was "placed by said defendant
under the control and direction and sab
Ject to the orders of the conductor Of said
train;' but it is. not averred that the acci-
dent which resulted in the death was
caused, in whole or in part, by any order
or direction given by said conductor to
| deceased, or that any order or direction
whatever was so given. On the other
hand it appears affirmatively that the
accident was not caused by any order or
direction given by the conductor to said
deceased. The complaint proceeds to state
| i'll detail the circumstances, facts and
causes which produced the accident by
which the deceased was killed: and they
are briefly as follows: The train, pro-
ceeding westward, had to pass certain
station called Tamarack. According to
| the rules and regulations, timetables and
| schedules, made by said defendant to
govern and regulate the movements of its
trains upon its aforesaid roads, and the
times Of the arrivals and departures of
said trains from stations, and for the IN
Stl'actiOf and guidance of its conductors"
said train ought to have left Tamaracl at
the hour of SO minutes past Il O'Clock,
noon, of said day, and not earlier; and it
was ''the duty of said conductor not to
| have allowed the train to start before said
| time. But the conductor ''in disregard
of the aforesaid rules, regulations, time
| tables and schedules of said defendant"
'negligently and recklessly ordered,
caused and permitted said train to leave
said yamarack station in its westward
| bound course a long time before the ex-
] nIr1tiOn of the and Gphn1Jiia inn
rs aforesaid" viz: at IS minutes past II
o'clock. by reason of said negligence,
recklessness and breach of duty Of said
conductor, and the departure of said train
from said Tamarack station before its
proper and schedule time, as aforesaid"
the train collided with another train, and
by said collision the deceased was killed
1t is stated by way of recital that he was
killed while at his post obeying the or
! derS and directions of said conductor, and
| performing his duties as such brakeman"
but there is no averment that any par
! ticular order was given, or that any such
order contributed in the slightest degree
| to the accident or to the death. The de-
murrer contained the general ground of
| want OF facts, and also special grounds
one being that the complaint was uncer-
! tain, ETC., because sit does not appear
therefrom what were the duties, or any of
them, required of or to be performed by
James w. Congrave, mentioned in said
complaint as brakeman on the train
mentioned therein"
We think that the demurrer was
properly sustained and that the judg-
ment should be affirmed.
1t is entirely clear on the face of the
complaint that the deceased and the con-
ductor were co-employes of defendant.
| 1t is also clear that the death was caused
| by the negligence and breach of duty of
the conductor in starting the train before
schedule time; no other cause of the ac-
cident is intimated in the complaint.
There is no averment that the defendant
was negligent in the selection of the con-
ductor. And the general rule (whatever
exceptions there may be to it) is well
settled in England and the United States,
and particularly ia this State, that q mas
ter is not liable to his servant for dam
ages sustained by the negligent act of a
fellow-Servant, unless the master was
negligent in the selection of the servant
at fault. 1t is hardly necessary to cite
authorities on this point, as we do not
understand counsel for appellant to con-
tend against the general rule as above
stated. The earliest cases upon the sub
| ject m this country in which the prin-
ciple was applied to railroad companies
and their employees, are Murray vs. r.
! h. Co., decided by the Supreme Court of
South Carolina in 1S4l Il Mcmillan 3S5),
and Farwen VS.. Boston and W. r. r.
Co.. decided in 1912 by the Supreme
Court of Massachusetts, Chief Justice
Shaw delivering the opinion. a Met. So
! These Lending cases were generally fol-
lowed in the United States. Very few
cases can be found which deny the gem
eral rule. They were also followed in
England. Hutchinson VS.. York n. & B.
r. Co., Exch. r. 345; Wigmore VS.. Jay,
8 Exch. r. 354; Bartonshill vs. Reid. Sd
Macqueen III. l.. Cases, 1861 We need
! not allude further to authorities in other
! jurisdictions, as this court has fre-
| quently approved the rule. In Yeo-
mans VS.. Contra Costa S. n. Co. (44
Cal. ~, the point was directly involved
and the court, among other things, say:
The defendants excepted to these in
! structions, and contend that the case is
within the reason of the rule that an en-
ployer IS not responsible to his employe
for injuries resulting from the negligence.
carelessless or unskillfulness of fellow
employe engaged in the same general
| business. The rule itself cannot be queS-
toned. 1t has been settled by a uniform
series of both English and American de-
cisions. The question comes upon the
application of the principle to the present
case" On that case it was held that
plaintiff, who was an express agent, was
q passenger, and not an einploye of de-
fendant.) In Hogan VS.. Central P. II. X.
Co. t49 Cal. 12S), the court say: "In Yeo-
mans VS.. Contra Costa S. n. Co. we an
nounced the rule of law on this subject,
and referred to many of the author
tiles by which it is sustained. The cases
are very numerous, many of them being
cited by defendant, and they are to the
effect that the master is not liable for in
jurieS suffered by servant through the
| neoiipanca of a fajlnvy Sarxa,at t,pIoSc tho