68 P. 478 | Cal. | 1902
This is an action brought by an employee of defendant to recover damages for an injury alleged to have been received by him through its negligence. Plaintiff had a verdict and judgment, and the defendant appeals from the judgment and order denying a motion for a new trial.
The defendant is a corporation engaged in the business of logging and lumbering in the county of Humboldt; and in the course of that business it maintains and operates a railroad about seven miles long, over which it hauls its logs. Plaintiff was employed as a train-hand on the railroad, and on the occasion in question he was injured, by reason of the derailment of the car upon which he was employed.
The substance of the complaint is, that the railroad track and road-bed were improperly constructed, and also not kept in good repair after construction; that by reason thereof the cars of defendant were derailed and plaintiff injured. A *75
general and special demurrer to the complaint was overruled, and error is relied upon by reason of such ruling. The complaint states a cause of action. (House v. Meyer,
As evidenced by appellant's brief, the important question raised upon this appeal relates to the sufficiency of the evidence to support the verdict of the jury. And in the consideration of this question only the evidence offered by plaintiff will be examined. There is testimony to the effect "that there was a sharp curve in the track where the car was derailed; that the train consisted of eight cars, and was backing at the rate of fifteen miles per hour; that there was no defect in the car which left the track; that the rails were old, mashed, stringy; that the joints were low; that the rails were remnants of a quantity of second-hand, old rails of all lengths; that they were not good rails; that the road was out of alignment; that the ties were loose; and that the degree of curvature at the point of the accident was about twenty degrees and unusual. According to the testimony of an expert engineer, this curve was a `very irregular curve,' had several `sharp kinks in it,' and that he never found in all his experience a railroad `so much out of line as this road'"; and, as expressed by several witnesses, the track at this point was "rough, very rough." The further fact was established that the car left the track at the sharpest point of the curve.
Upon the foregoing state of facts the court concludes that the jury were justified in finding a verdict against defendant as to the cause of the accident and as to its negligence. Upon this state of facts the jury were justified in saying that the car probably left the track by reason of the defects above detailed. Upon this point it is a strong case of circumstantial evidence. At least, it may be said that this evidence was sufficient to justify the denial of a motion for a nonsuit. Appellant relies upon the principle of law stated in Grant v. Pennsylvania etc.R.R. Co.,
In this case defendant offered evidence tending to show that the car was derailed by a piece of wood placed upon the track unintentionally by a near-by wood-chopper; and the principle of law invoked from the New York case is more directly in point when this evidence is considered jointly with the evidence of plaintiff. But, after all, it was for the jury to say from all the circumstances, whether it was more probable that the defective road-bed and rails caused the car to leave the track, or more probable that a stick of wood caused it to do so. As far as this court is concerned, in reviewing this question, the testimony tending to show that the car left the track by reason of a mislaid stick presents a mere conflict of evidence. If plaintiff made a prima facie case for a recovery, then this evidence as to the stick, as just observed, only serves the purpose of creating a conflict, and such a conflict is not a matter for review by this court. In weighing probabilities as to the two respective causes for the accident, this court would not be passing upon a question of law, but upon a pure question of fact. The jury declared it was more probable that the defective road-bed and rails caused the accident than it was that the stick caused it, and with that declaration this court will and must be satisfied. The facts of plaintiff's case do not fit the facts disclosed in Puckhaber v. Southern Pacific Co.,
It is insisted that the court erred in refusing instructions upon the question of the negligence of a fellow-servant. Upon this point it is only necessary to say that no affirmative defense of that kind is made by the pleading, and in the absence of such a pleading, the instruction was properly refused. (Conlin
v. San Francisco etc. R.R. Co.,
For the foregoing reasons the judgment and order are affirmed.
Harrison, J., and Van Dyke, J., concurred.
Hearing in Bank denied.