103 Cal. 268 | Cal. | 1894
Lead Opinion
The defendants are stevedores, and in August, 1885, were engaged in discharging a cargo of coal from the vessel “ Henry Hyde,” then lying at one of the wharves in San Francisco. The plaintiff’s intestate was in their employ, and while so engaged a tub of coal, which was being hoisted from the hold of the vessel, swung around so that it might be emptied into another vessel alongside, and struck him with such force as to cause injuries from which he died. The plaintiff, as the administratrix of his estate, brought this action against the defendants to recover the damages sustained by his death, alleging that it was caused by reason of their negligence. The coal was hoisted by means of a donkey engine on the wharf, which was in charge of an engineer named Murphy, who at signals from another employee started and stopped the engine; and it is claimed by the plaintiff that the injury to the deceased was caused by the negligence of this engineer; and, in order to avoid the rule of law which exonerates the employer from liability to an employee for an injury resulting from the negligence of a fellow-servant, the
Murphy’s capacity as an engineer, aside from the impairment of such capacity by reason of this alleged habit, does not seem to have been questioned by the plaintiff, and there was ample evidence of such capacity shown at the trial. The plaintiff did not attempt to show that Murphy was intoxicated at the time of the accident, nor was there any evidence of that purport before the jury. Murphy himself testified, and there was no evidence tending to contradict his statement, that he was not intoxicated on the day of the accident, and had not taken any intoxicating liquors, either on that day or for a year prior thereto. The testimony of Nagle that in the morning of that day, while Murphy was fixing his engine, and seemed to be in a hurry, some one remarked: “ I guess he is drinking a little,” is not entitled to any consideration as evidence that he had in fact been drinking.
Upon the theory of the plaintiff that the injury resulted from the negligence of Murphy, if she would charge the defendants with the results of this negligence, by reason of their having him in their employ, with knowledge of his intemperate habits, it was necessary for her to show that the injury was in some respect the result of such intemperate habits. Unless the accident was in some way connected with such habit, or resulted from intemperance, the habit was not the cause of the negligence, and the defendants could not, by reason of their knowledge of this habit, be rendered liable for the negligence of Murphy resulting from any other cause. If the fact of Murphy’s habit of intemperance at or about the time of the accident had been shown, the jury might have inferred that he was in that condition
For the purpose of establishing this habit in Murphy, the plaintiff offered evidence of his reputation in the matter of drinking, and also the testimony of certain witnesses that they had at times seen him “ under the influence” of liquor. None of the witnesses testified that they had ever seen him intoxicated, or that he was in fact accustomed to habitual drinking. It was shown that he would occasionally drink, “to be sociable and pleasant,” and also that it was quite common for engineers to drink. One witness, when asked about his habits with respect to drink prior to the day of the
This motion should have been granted. It cannot be said that to take an occasional sociable drink, or even to be occasionally “under the influence” of drink, constitutes a habit of drinking, or that a jury would be authorized to infer from such evidence that the man had been rendered incapable of properly managing his engine, when he had not been drinking for a year prior
While proof that Murphy, had a general reputation for drunkenness might be held to impute to the defendants knowledge of such reputation, and, consequently, impose upon them the necessity of making inquiry with reference to the fact, and charge them with the consequences of not doing so, yet such proof would not establish the fact that he was in reality so addicted, and it might be that the inquiry by the defendants, after being informed of the reputation, would show that the reputation was without foundation; otherwise, the defendants would be charged with the consequences of a trait that never existed. Upon this proposition the court instructed the jury as follows: “ If you believe from the evidence that,
It appeared at the trial that the plaintiff was the wife of the deceased, and that after the commencement of the action, and before the trial, she had remarried. The defendants objected that by her remarriage her authority as administratrix was extinguished, and she could no longer maintain the action. It has been held, however, that the marriage of an executrix does not, eo
As the case is to be remanded for a new trial, we do not deem it proper to indicate any opinion concerning the weight of evidence upon the issues of negligence or contributory negligence.
The judgment and order are reversed.
McFarland, J., concurred.
Fitzgerald, J., concurred in the judgment.
Concurrence Opinion
It is claimed that the accident occurred by reason of the negligence of the engineer, a servant of the defendants and a fellow-servant with the deceased. To support plaintiff’s case under this state of facts it was not only necessary to prove that the engineer was intoxicated at the time of the accident, but that defendants were guilty of negligence in employing him. It was proven that his general reputation for sobriety was bad, and it may be conceded for the purposes of this case, at least, that defendants were lacking in the exercise of due and proper care in hiring such a man. But there is no evidence in the record that he was intoxicated at the time of the accident, and nothing therein from which we are justified in drawing an inference to that effect. I concur in the judgment.
De Haven, J., concurred in the opinion of Mr. Justice Garoutte.
Rehearing denied.