Stevens v. S. F. & North Pac. R.R. Co.

Citations

• 100 Cal. 554
• 35 P. 165
• 1893 Cal. LEXIS 833

Syllabus

<p>Negligence—Action for Death of Fireman—Neglect of Engineer— Burden of Proof—Notice of Incompetency. —In an action to recover damages for the death of plaintiff’s husband alleged to have been caused through the negligence of a railroad company, in conducting a steam ferry, whereby the deceased, who was, at the time of the accident, a fireman and oiler on one of the defendant’s ferry-boats, and while engaged in oiling the machinery was fatally injured through the negligence of the engineer, it is incumbent upon the plaintiff to show not only that the death was proximately caused by the negligence of the engineer, but also that the engineer was incompetent, and that there was negligence upon the part of the defendant in employing him in the first instance, or in retaining him in its service after notice of his incpinpetency.</p> <p>Id. —Fellow-Servants. —A fireman and oiler and an engineer of a ferryboat are fellow-servants employed “in the same general business” within the meaning of section 1970 of the Civil Code, and the fact that the engineer employs and discharges the firemen and oilers who work under him at will does not alter their relation as fellow-servants.</p> <p>Id.—Knowledge of Drunkenness of Engineer—Modification of Instruction. —Where there was some evidence to the effect that the engineer was addicted to drunkenness, and the question as to whether or not knowledge of such drunkenness had been brought home to the defendant was in issue, an instruction asked by the plaintiff that “if an engineer should be perfectly skillful and competent to run an engine, by reason of his intelligence, knowledge, skill and experience, and yet should be unsteady and unreliable on account of a habit of drinking intoxicating liquors to excess, he would not he a competent engineer within the meaning of the law,” is properly modified by adding “if the employer knew of the fact or had means of obtaining such knowledge.”</p> <p>Instruction to Jury—Duty of Court.—The court is