Brown v. Central Pacific Railroad Co.

Myrick, J. Action to recover damages for negligently causing the death of plaintiff’s intestate. The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the plaintiff failing to amend, judgment was rendered for defendant. Plaintiff appealed. The only question presented, therefore, is as to the sufficiency of plaintiff’s case as stated in the complaint. After alleging that defendant was operating the railroad at the point named, viz., the Oakland wharf, over and upon a narrow strip of land and trestle-work, and that it was necessary for some of defendant’s locomotives and trains of cars converging at that point to stop and await the passage of other locomotives and trains, in order to avoid accidents by collisions and otherwise, it was alleged that the defendant had devised and prescribed and published a system of signals for the guidance and direction of its engineers (of whom plaintiff’s intestate was one) operating and directing said locomotives and trains, which system the engineers were required by defendant to understand and ordered to obey, and it was a part of the contract of employment that the signals should be correctly given; that it was the duty of the defendant to show and present to view the right signal for the guidance of its engineers; yet that the defendant did not show and present to view the right signal for the guidance and direction of said intestate, acting as engineer; that while said intestate in his capacity of engineer on a locomotive of defendant, according to directions given to him by defendant, was proceeding over the said place, the defendant did show and present to view the wrong signal for the guidance and direction of said intestate, whereby, without any negligence, unskillfulness, or default of the said intestate, but solely' [173] and immediately in consequence of the negligence and improper conduct of the defendant, the locomotive was turned aside from the true and safe course, and was precipitated into the waters of San Francisco Bay, and the intestate was killed; that his death was caused solely by the gross neglect and carelessness of the defendant in giving the wrong signal, namely, the signal to proceed, and in failing to notify him or give him any signal, as it ought to have done, that the switch immediately in front of the locomotive was open, thereby inducing and directing him to proceed with the locomotive. We have not, in the above statement, given the language in full of the complaint, but have given sufficient, in substance, to present the point of law involved. In our opinion, the question of the responsibility of a common employer for the acts or negligence of another person employed in the same general business (section 1970, Civil Code) is not here presented. The case as presented in the complaint is of alleged acts and omissions on the part of the defendant itself, as employer. (Section 1969, Civil Code.) Whether the proofs will sustain the allegations is not now for consideration. As against positive allegations that the acts and omissions complained of were by the defendant, we cannot presume that they were those of a fellow-employee of the deceased. The demurrer should have been overruled. Judgment reversed and cause remanded, with directions to overrule the demurrer, with leave to defendant to answer. Thornton, J., Morrison, C. J., and Sharpstéin, J., concurred.