Fogarty v. Southern Pacific Co.

A rehearing was granted in this case, after decision in Department, principally because of the complaint of plaintiff that no reason had been assigned for the reversal as to the defendants Nelson and Waters, employees of the principal defendant and fellow-servants of the plaintiff. Upon the reargument, plaintiff's counsel, while urging that the judgments and orders should be affirmed as to the railroad company, stipulated that in the event of reversal as to it, the judgments and orders should also be reversed as to the other defendants. We are satisfied that this course should be adopted. On further consideration, we see no reason to modify the views expressed in the Department opinion as to certain instructions given to the jury at the request of the plaintiff, and on account of which the reversal was ordered. Learned counsel for defendant railroad company earnestly urge that the Department opinion be modified in certain particulars. Much of what is said by counsel in this behalf is due, we cannot but feel, to a misconception of the opinion. Certainly that opinion cannot be construed as declaring that the proximate cause of the accident was the non-adjustment of the brake. The assumption to this effect, of which defendant complains, was expressly limited in the opinion to the discussion of the question as to the alleged negligence of the defendant in the matter of the inspection of the brake, and the instruction given to the jury in that connection, and on account of which the reversal was ordered. It is declared, in effect, over and over again in the opinion that the question as to the proximate cause of the accident was in this case one for the jury. Unless the jury can find upon sufficient evidence that the railroad company was negligent in the matter of the inspection of the brake, and that this negligence contributed directly to plaintiff's injury, there can of course be no recovery by plaintiff. If the accident was wholly due to the negligence of a fellow-servant of plaintiff, or disobedience by him of a reasonable rule enacted for his guidance in the operation of the car, either as to the making of a flying switch at all, or examining the brakes before making the same, there can be no recovery, even though the defendant had itself been negligent. (Kevern v. Pro. etc. Co.,70 Cal. 394, [11 P. 740]; Vizelich v. Southern Pacific Co., 126 Cal. *Page 788 587, [59 P. 129]; Luman v. Golden etc. Co., 140 Cal. 707, [74 P. 307].) The evidence in the record before us cannot be held, as a matter of law, to show what was the proximate cause, and hence the question is necessarily one for the trial jury. It should also be said in this connection that the showing in the record now before us, as to whether the conditions were such as to make the rule prohibiting a flying switch "except where it would cause great delay to do the work in any other manner" applicable is extremely weak, if, indeed, there can be said to be any showing at all on the subject. It was because of this that the matter was not referred to in the former opinion. If defendant relies on a violation of this portion of the rule, it should make it appear that the work could have been otherwise done without what would have been "great delay" under the existing circumstances. Five or ten minutes might have constituted such a great delay under certain circumstances. The question as to whether or not the condition of slack in the brake was a mere matter of detail in the operation of the car, the discovery and remedying of which was a part of the regular operation of the car by train hands or switching crew, was discussed in the former opinion in the light of the evidence contained in the record. We are satisfied with the views expressed in the opinion in regard to that question, as applied to the case shown by such record, and see no occasion to add thereto. The portion of the former opinion reading as follows: "If at the time when an inspection was required of the railroad company in the exercise of reasonable care, by reason of the negligent failure to inspect the brakes at all, or a negligent inspection, the defect remained undiscovered and caused injury, the defendant would be liable for injuries proximately caused thereby, notwithstanding a violation of this rule by Waters, even though had the rule been observed the defect would have been discovered," should be stricken out, together with the words "on the other hand" immediately succeeding. With this exception the Department opinion is adopted as the opinion of the court in Bank, supplemented by what we have heretofore said. The judgment, the modified judgment, and the orders denying a new trial are reversed and the cause remanded. *Page 789 Shaw, J., Sloss, J., Henshaw, J., and Lorigan, J., concurred. The following is the opinion of Department One above referred to rendered on March 14, 1907: —