O'Connell v. United Railroads of San Francisco

This is an action for personal injuries. The cause was tried by a jury and a verdict returned in favor of the plaintiff for the sum of $6,000, the plaintiff having asked for $30,000.

Judgment was given and entered in accordance with the terms of the verdict so returned, and this appeal is by the defendant from said judgment and the order denying it a new trial.

There is no dispute as to the circumstances under which the accident and consequent injuries to the plaintiff occurred. The principal point of controversy is whether, under the averments of the complaint, the general verdict may be sustained

The defendant, a corporation, is engaged in the business of “running and maintaining and operating certain lines of street railway in the city and county of San Francisco over and upon certain streets” in said city, and at the time the plaintiff sustained the injuries complained of, and from time to time prior thereto, was engaged in constructing, altering and repairing certain portions of its railway system. For that purpose it operated, by means of electricity and trolley-poles, cars for carrying dirt from certain points on its said lines of railway to other points on said lines.

It appears that in the year 1902, when the plaintiff was a lad of about the age of fourteen years, he left school for the purpose of seeking and procuring work, and that he was given employment by the defendant. At first he was put to work carrying and distributing drinking water to and among the workmen engaged in construction work on the defendant’s railway lines. He performed this service for a period of about six months, when the defendant put him to work as a messenger, whose duties were to carry letters and requests for tools between the construction points and the railroad office. In the last-mentioned capacity he acted for about six months, having then been continuously in the employment of the company for about a year. He was discharged from the service of the company in May, 1903. Up to this time the plaintiff had never had any experience with or in the use of machinery of any kind or character, and had no knowledge of the manner of manipulating cars operated by electricity, nor did he know anything about the appliances or machinery by means of which such cars are operated.

After his discharge from the service of the defendant, he obtained employment with the Key Route Railway Company in Oakland. While employed with that company he was put to “drilling holes in rails with a ratchet for the purpose of putting in bond wires between the rails.” He continued in the service of the Key Route Company for about six months,

The ear upon which he was assigned to duty was then in charge of, one Kleupfer, the motorman, it being shown and admitted that construction cars were always in control of the motormen and that the trolley-tenders were subject to the orders of the former.

The plaintiff made several trips on the'car prior to the time at which the accident occurred. It appears that the car was engaged in hauling dirt to a point on the defendant’s railway system in the neighborhood of Golden Gate Park. Just before the accident, the ear was standing on a bridge, where the dirt was being dumped from the car. There was but one track on the bridge. At either end of the bridge two tracks merged into the single track on the bridge. While the dirt from the car was being dumped therefrom on the afternoon of the eighth day of August—the day succeeding that on which the plaintiff was inducted into the position of trolley-tender—two passenger ears, coming in opposite directions, approached either end of the bridge. It was the duty of the construction car to clear the track to enable the passenger ears to pass over the bridge, and in order to do this, the motorman first ran his car to the south side of the bridge to let the north-bound car cross, after which he started across

The plaintiff testified that, when ordered by Graham to take the position of trolley-tender, the latter made no inquiry of him as to whether he (plaintiff) had ever had any experience in that line of employment; that Graham did not explain to him at that or at any other time the character of the duties he was thus required to perform, nor did he warn plaintiff of any dangers that might be involved in the discharge of those duties.

Kleupfer, the motorman, testified that, previously to the assignment of the plaintiff to the performance of the duties of trolley-tender, he said to Graham that he “would like to have a man tend this trolley, somebody that knows the wires and switches, ” as he could not do anything with the man who

Graham, testifying for the defendant, admitted that, previously to putting the plaintiff to work &s a “trolley-tender,” he did not ask the boy whether he had ever acted in that capacity before, or whether he had ever had any experience in or with the operation of a car. He admitted that he did not even know the extent of Kleupfer’s experience as a motorman, or what Kleupfer’s ability was as a motorman, although, he testified, all that he said to the plaintiff when ordering him to take the position of conductor or “trolley-tender” was that the motorman would tell him what to do, and where to go, and what switches to take. Graham further admitted that at no time did he explain to the plaintiff that there was any danger involved in the performance of the duties of a “trolley-tender,” or give plaintiff any warning that the trolley might fall or be pulled down. And upon this point the plaintiff testified that the motorman, prior to the accident, gave him no instructions as to his duties with the exception of telling him how to open and close the switches and to adjust the trolley to the wire; that he did not at any time warn the plaintiff of the dangerous character of the work to which he (plaintiff) had been assigned by Graham. There was evidence received to the effect that, when the plaintiff entered upon the discharge of the duties of “trolley-tender,” the trolley-pole was in a defective condition, and that plaintiff had discovered and knew that the pole was bent or not in perfect condition after he had operated it for a short time.

As previously stated, there is practically no disagreement between counsel with respect to the circumstances under which the plaintiff was put to work as a conductor on the work-car or of the circumstances attending the accident. But

But, to obtain a clear understanding of the main proposition contended for by the defendant with reference to the issues tendered by the complaint, it will also be necessary and at this time the more orderly to refer to and reproduce some of the averments of plaintiff’s pleading.

Paragraph 7 of the complaint charges that the plaintiff, while employed as a messenger boy by the defendant, was ordered and directed by the latter to board the construction car heretofore referred to for the purpose of acting as conductor thereon, and that he was ordered and directed by the defendant, while so acting as conductor, to obey all orders given him by the motorman in charge of said ear.

Paragraph 8 alleges that the trolley-pole used on said car was, at the time the plaintiff was put to work as indicated, defective and out of repair, and that such condition of said pole was known to the defendant, “or, in the exercise of reasonable care, would have become known to said defendant, and was unknown to plaintiff. ’ ’

Paragraphs 10, 11, 12 and 13 read as follows:

“X. That at the time said plaintiff was given said instruction last, aforesaid, said work which plaintiff was instructed to do was dangerous and hazardous, all of which was known to said defendant and unknown to said plaintiff.

“XI. That at all of said times said plaintiff was unfamiliar with and inexperienced in the operation of said cars and the handling of said trolley-poles, and at all of said times was unaware of the dangerous and hazardous character of the work which he was ordered to do, all of which was known to said defendant.

“XII. That pursuant to said order aforesaid, and while said car was proceeding in a northerly direction as aforesaid, and under the circumstances aforesaid, said trolley-pole was pulled down by plaintiff, by means of said rope, for the purpose of switching it from said overhead wire, with which it was in contact, to said other wire. That as plaintiff pulled said trolley-pole as aforesaid, by means of which said rope, below said wire, with which said trolley was in contact, said

trolley-pole, by reason of its being o%it of repair, and by reason of its being in ai defective condition, suddenly broke, thereby causing plaintiff to lose his balance and fall from the place where he was standing, to wit, on said bumper located on the front of said car, to the ground.

“XIII. Then and there, by reason of plaintiff’s fall to the ground in front of said car, said car (then in motion) came into violent collision with plaintiff, and ran over him, then and there inflicting upon him the following injuries. ’ ’

The complaint, as counsel for plaintiff contend, proceeds upon the theory that the defendant was guilty of two different and distinct acts of negligence, upon either of which, singly, or both operating concurrently to produce the injuries complained of, a recovery may be predicated.

On the other hand, the defendant first contends that (to use the language of its counsel) “although it is stated in paragraphs 10 and 11 of the complaint that this work which the plaintiff had been instructed to do was dangerous and hazardous, which was known to the defendant, but unknown to the plaintiff, and that the plaintiff had never been warned nor instructed concerning this danger, but was inexperienced in the operation of cars, and the knowledge of trolley-poles, and unaware of the dangerous character of the work, all of which was known to the defendant, the plaintiff cannot recover on the basis of any of these allegations because it is not stated in the complaint that any of these matters caused or were responsible for the injuries received by the plaintiff. Having alleged what caused his injuries, the plaintiff is limited to that basis of recovery; having stated that he was injured by reason of the trolley-pole being out of repair and in a defective condition, and not having alleged that he was injured by reason of any other act or omission, he cannot predicate liability on any such act or omission, but is confined to the one theory that the defective condition of the trolley-pole was the cause of his injuries, and his recovery must be based solely upon that ground.”

The court submitted to the jury a number of special questions of fact involved in the issue of negligence attributed to the alleged omission of the defendant to maintain a trolley-pole in perfectly sound and safe condition, and likewise submitted a number of particular questions of fact involved in

The jury returned affirmative answers to the questions whether the trolley-pole was out of repair at the time of the accident to plaintiff and whether, at the same time, such condition of said pole was known to plaintiff. Upon the several other questions relating to the condition of the pole, calling for a direct decision of the propositions whether the pole was defective, whether such condition was known to the defendant a,t the time of the accident, and whether the defendant, by the exercise of reasonable care, could have known of the condition of the pole as found by the jury, the jury could not agree, or, to be more explicit, the three-fourths of the number of the jury requisite to form and return answers could not agree upon responses to said questions and so reported to the court.

It is therefore contended by the defendant that the jury having thus failed to return answers to the particular questions of fact involved in what it conceives to be the only and single issue of negligence submitted by the complaint, such failure was tantamount to a failure of the jury to agree upon the general verdict. In other words, it is the contention that the negligence alleged in paragraph 12 of the complaint being the only negligence upon which the plaintiff relies for a recovery, unless such negligence was proved, the general verdict could not stand, and that the failure of the jury to answer the particular questions of fact involved in that issue of negligence proved that the jury could not agree upon the facts essential to the support of the general verdict. Under these circumstances, it is further urged, it was the duty of the court not to accept the general verdict.

At the time of the trial of this action, under the terms of section 625 of the Code of Civil Procedure, as said section was amended by the legislature of 1909 (Stats. 1909, p. 193), it rested, as it does now, entirely in the discretion of the trial court whether particular questions of fact should be submitted to the jury in certain classes of eases. Prior to said amendment and under an amendment of said section by the legislature of 1905 (Stats. 1905, p. 56), it was compulsory upon the court to submit such questions to the jury where

We are, however, not in accord with the defendant’s construction of the complaint or of the scope and effect of the averments thereof, or, in other words, with its conception of the theory as to negligence upon which the complaint has proceeded, and are, therefore, of the opinion that the failure of the jury to return replies to the particular questions bearing upon the issue as to the defective condition of the trolley-pole cannot justly be held to constitute or amount to a disagreement by the jury upon the general verdict. In other words, we do not assent to the proposition as contended for by the defendant that the plaintiff has, in his pleading, predicated his claim to relief solely upon the negligence involved in the ■ alleged act of the defendant in suffering the trolley-pole to be and to remain in a defective condition. Indeed, scrutinizing that pleading in its entirety and viewing and construing the charging parts of its allegations together and as a whole, it cannot, with reason, be held that the plaintiff relies any more upon the negligence to be inferred from the averments concerning the defective condition of the pole than upon the

The real and only issues tendered by the complaint, then, are: Did the plaintiff receive the injuries as alleged in the complaint? If so, was it by and through the negligence of the defendant that such injuries were proximately produced?

Manifestly, it was for the jury to decide these issues, and it was within their right and province under the issues as thus submitted, having found that the injuries had been received, to determine from the evidence whether the negligence of the defendant in producing them was in the alleged act of maintaining a defective trolley-pole or in its alleged failure to properly or at all warn and instruct the plaintiff as to the danger and hazard lurking in the duties which it required him to perform and in the execution of which he sustained such injuries, or in both the alleged wrongful acts operating together. It follows, therefore, that, although the jury might have conceived themselves justified by the evidence in acquitting the defendant of culpability as to the matter of the alleged defective trolley-pole, still they were authorized, if the evidence warranted such conclusion, in basing their verdict upon the negligence of the defendant in omitting to warn and instruct the plaintiff as to the hazards of the undertaking which it had directed him to assume. And this, it is clearly manifest from the general verdict and the answers returned to certain of the particular questions of fact submitted to them, is precisely what the jury did.

We have already seen that the jury could not agree upon responses to some of the essentially material particular questions of fact involved in the issue as to the alleged defect in the trolley-pole. But, as before stated, they did agree upon and return answers to all the particular questions involved in the issue as to the negligence of the defendant in failing to instruct the plaintiff that the duties of trolley-tender involved hazard and danger to an inexperienced person undertaking to discharge them. The answers so given involved express findings by the jury of these facts: That the defendant, as alleged in the complaint, ordered the plaintiff to take the position of conductor on one of its work-cars; that the

It will, of course, not be disputed that the settled rule is that, where the master employs a servant to do dangerous work or to do work necessarily requiring him to handle or move about machinery of a dangerous character, “who, from youth, inexperience, ignorance or want of capacity, may fail to appreciate the danger surrounding him, at such work, it is a breach of duty for the master to expose such servant, even with his own consent, to such danger, or to place him in a position where it shall become necessary for him to encounter the same without first giving him such full and complete instructions as will enable him to fully and completely comprehend them, and to do the work safely, and with proper care on the servant’s part. ’ ’ (Prom an instruction approved in Clark v. Tulare Lake Dredging Co., 14 Cal. App. 439 , [ 112 Pac. 564 ], and founded upon the rule as laid down in Foley v. California Horseshoeing Co., 115 Cal. 184 , [ 56 Am. St. Rep. 87 , 47 Pac. 42 ].)

In the last-mentioned case the court points out certain conditions upon which a minor, employed about dangerous machinery, may himself be held responsible for any accident and consequent injury that might happen to him while engaged about or in operating such machinery, but, on the other hand, it unreservedly approves the general rule as to the employment of minors as it is thus enunciated in Turner v. Norfolk etc. Ry. Co., 40 W. Va. 675 , [ 22 S. E. 83 ]: “A minor cannot be expected to set up his opinion, however mature, against the judgment and experience of those maturer and older to whom he is given in charge, but he is taught the lesson of obedience from his cradle, and he is required to respect the commands and to pay deference to the judgment of his elders, until legally emancipated at the age of twenty-one years. And it would be an extreme case in which a minor should be guilty of contributory negligence in obeying the orders of his foreman, representing his master.”

The brief reference we have made to the evidence is, we think, sufficient to disclose that the case here comes clearly within the doctrine invoked and applied in the cases above cited. Here we have a lad scarcely beyond the age of fourteen years, who, when called to the employment in the execu

The defendant complains of a number of errors, which it claims were prejudicial to its rights, in the action of the court involving its charge to the jury. It will not be necessary to give all these assignments special notice. It may be remarked generally that the court instructed the jury clearly and fully upon all the issues upon which enlightenment as to principles of law pertinent thereto was essential to a just determination of the ease as made by the pleadings and proof.

What we have heretofore had to say concerning the issues as to negligence tendered by the complaint is substantially a reply to the contention that the general verdict is against law because it is in conflict with instruction No. 32, given by the court at the request of the defendant, and declaring that the defendant would not be liable for any injury suffered by

The above observation is equally pertinent to instructions Nos. 3 and 10, submitted to the jury on the motion of the plaintiff, the questions involved therein having already been examined and decided against the contention of the defendant with regard thereto. The first of these instructions merely announced to the jury that the plaintiff, in his complaint, relies, as to negligence, upon two separate and distinct theories. This we have held to be true, and, therefore, the second of said instructions pertinently and, we may add, correctly declared to the jury the rule as to the duty of the master toward his servant, where the latter is required or directed by the former to perform duties of a dangerous character or in a dangerous place, and such servant, from youth, inexperience, ignorance or want of general capacity, may fail to appreciate the dangers of such duties or place.

Error is. further predicated upon the court’s refusal to allow some of the defendant’s instructions, among which is instruction No. 50, which reads as follows: “Even if you find that the defendant was negligent, such negligence was not the proximate cause of the injury, unless the defendant, in the exercise of ordinary care, ought reasonably to have foreseen that injury might result therefrom, or unless such injury was the natural and probable consequence of the master ’s negligence. ’ ’ This instruction is so general in form that it is difficult to say to which theory of negligence relied on in the complaint it was intended that it should apply. If, however, it was addressed to the alleged negligence involved in the act of maintaining a defective trolley-pole, the reply to the exceptions to the court’s action in refusing it is twofold: 1. That the court, in its charge, fully covered the law as to such alleged negligence; 2. That, even if it were error to disallow it, the error is without prejudice, since the jury practically found in favor of the defendant on the issue of negligence as to the trolley-pole, or, at any rate, eliminated that theory of negligence as an issue in the case by their failure

Instruction No. 51, relating to the issue as to the condition of the trolley-pole, proposed by the defendant, was rejected, and the action of the court in that respect, even if erroneous, which we do not decide, turned out to be without prejudice, because (as suggested in the above observations on defendant’s proposed instruction No. 50) the issue to which it was addressed became immaterial by reason of the action of the jury thereon. (Lightner Mining Co. v. Lane et al., 161 Cal. 689 , [ 120 Pac. 771 ]; Lowe v. San Francisco etc. Ry. Co., 154 Cal. 573 , 578, [ 98 Pac. 678 ].)

It is next contended that the court erred in declining to allow certain instructions, proposed by the defendant, on the subject of negligence of a fellow-servant. The court was, in our opinion, justified in rejecting said instructions. While the answer, as one of the defenses, pleads that the injuries of the plaintiff were occasioned solely through the negligence of a fellow-servant, there was not offered by the defendant, nor is there in the record, any evidence supporting that defense. The undisputed evidence, on the contrary, shows that the plaintiff was ordered by the general foreman of construction of the defendant to take the position of conductor or trolley-tender on one of its work or construction cars; that said car was in the immediate control of the motorman, and that the foreman of construction directed the plaintiff to take orders as to the manner of discharging his duties as trolley-tender from the motorman, saying to plaintiff that the former would show him what to do and how to do the work to which he was assigned. It is very clear from these facts that the motorman, in his relation to the plaintiff as an employee of the defendant, was more than a mere fellow-servant in the sense that an employer is not legally liable for injuries sustained by one servant through the negligence of a fellow-servant. Under the circumstances as revealed by the evidence, he was the agent of the defendant or its vice-principal.

As before indicated, it is clear that all the evidence upon that question plainly and unmistakably shows that both the motorman and the general foreman of construction, in their transactions with the plaintiff as shown by such evidence, sustained the relation of vice-principals to the defendant, and that there having been introduced into the record no evidence showing or tending to show that they were fellow-servants of the plaintiff in the sense that the defendant could not be held responsible for any act or acts of theirs resulting in injury to plaintiff, it follows that the rejection of the instructions here referred to did not constitute error. It is a proposition too obvious to require reference to authorities to prove it that a trial court is never required to submit to a jury the law upon an uncontroverted question of fact. However, the following cases expound the rule as thus stated: McNamara v. Macdonough, 102 Cal. 581 , 583, [ 36 Pac. 941 ]; Tompkind v. Mahoney, 32 Cal. 235 ; Terry v. Sickles, 13 Cal. 429 ; Caulfield v. Sanders, 17 Cal. 573 ; Robinson v. Western Pac. R. R. Co., 48 Cal. 424 ; Watson v. Damon, 54 Cal. 279 ; State v. Osborn, 45 Iowa, 425 , 428; Brickwood-Sackett on Instructions, sec. 199.

The rejection of defendant’s proposed instruction No. 55 cannot, under the circumstances, be held to have been prejudicial to the defendant. This instruction would have told the jury that if there were two ways, one safe and the other dangerous, by which the plaintiff could have performed the

There is discussed in the briefs but one of the rulings on the evidence to which exceptions were reserved. The defendant, for the purpose of showing reasonable care in the selection of the mechanical appliances used upon its cars, sought to prove the “advertised test” of the manufacturers of the trolley-poles used by it. The court, under an objection, refused to permit the defendant to show by one of its witnesses what such advertised test disclosed in that respect. The court excluded the testimony on the ground that it was hearsay. But, without deciding whether the exclusion of the testimony on that ground was or was not erroneous, it is very clear that, since the issue as to the alleged negligence of the defendant by reason of the alleged defectiveness of the trolley-pole was eliminated from the case by the jury, and, therefore, formed no part of the basis of the general verdict, the ruling was harmless.

We have now specially noticed all the principal points which we have felt required such consideration in this opinion, and our final conclusion is, as must be apparent from

Accordingly, the judgment and order are affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 10, 1912, and the following opinion then rendered thereon:

There are three propositions upon which a rehearing of this cause is asked of this court, viz.: (1) That we fell into error in the statement that the amendment by the legislature of 1909 of section 625 of the Code of Civil Procedure, relating to the matter of the submission of particular questions of fact and special issues to juries, by which amendment trial courts are given discretion as to the matter of the submission of such questions and issues, was in force at the time of the trial of this action; (2) that this court is mistaken in the declaration “that there was no evidence which would warrant the submission to the jury of the defense as to negligence of a fellow-servant”; (3) that this court ignored the proposition contended for by the defendant, that there is “no evidence sufficient to show any causal connection between the negligence found by the jury to exist and the plaintiff’s - injuries,” the contention being urged in the petition that the evidence affirmatively showed that there was no such causal connection.

1. As to the first point, we confess that we were in error in the declaration that section 625 of the Code of Civil Procedure, as amended in 1909, had taken effect and was in force at the time of the trial of this action. We now find, upon a closer examination, that the amendment was approved on the sixth day of March, 1909, but, as no other time was fixed in the act amending the section, the amendment, under the terms of section 323 of the Political Code, did not go into effect until the sixtieth day after its passage. The trial of this action was commenced and completed before the expiration of that period, and the amendment was, therefore, not in force at that time.

But it is plainly manifest, if our conception of the issues presented by the complaint and of the effect of the answers

2. After a careful re-examination of the record, we are satisfied with the conclusion heretofore arrived at that there was no evidence to which the requested but rejected instructions relating to the fellow-servant defense pleaded in the

But, in the light of the action of the jury, as shown by their general verdict and their answers to the interrogatories relative to the issue of negligence involved in the omission of the defendant to warn the plaintiff of the hazardous nature of his employment, we are unable to perceive in the question whether the motorman was a fellow-servant of the plaintiff

But let us now see, by a brief examination of the proofs, if it is not true that the court was justified in holding, as a matter of law, that the evidence incontrovertibly established the proposition that both Graham and Kleupfer were, in the transaction of which this action is the outgrowth, acting as vice-principals of the defendant, and that, therefore, the rejection of the “-fellow-servant” instructions was clearly warranted.

The testimony shows without contradiction that the plaintiff was without previous experience in the line of duty to which he was put; that, in fact, he had never had any experi

3. It is stated in the petition, as we have already shown, that this court in its former opinion ignored or failed to con

The theory upon which the defendant appears to insist that there is no causal connection shown between the negligence of which the jury found the defendant guilty and the injuries received by the plaintiff is that, in point of fact, the immediate cause of the injuries was the breaking of the trolley-pole.

But the important proposition here is not as to the particular manner in which or the immediate means by which the plaintiff received his injuries, but it is the fact that the defendant negligently put him to work in a dangerous place or where it was hazardous for a youth without experience and general capacity or proper warning to be employed in. These facts proved and the causal connection between the act of omission of the defendant and the injuries was at once established, unless some efficient, independent cause operating to arrest the s.aid first or primary causation intervened. The means by which the plaintiff sustained the injuries—that is, the immediate circumstance that' precipitated the injurie»— cannot, in a case of this character, be said to have been an independent cause, so interrupting the operation of the original cause or wrong as to have destroyed causal connection between the latter and the injuries. By this we mean to be understood as saying that, unless the plaintiff here were shown to possess experience, judgment, and capacity, or, deficient in these qualifications, had been properly warned as to the hazards of the employment into which the defendant required him to enter, the mere manner in which he may have received his injuries would not constitute an independent cause which in law would have the effect of arresting the primary cause originating in the negligence of the defendant in properly

But much stress is laid upon the fact, as to which there is some evidence, that the plaintiff was unusually bright and intelligent and apt at acquiring knowledge, that as a messenger and a water carrier he had had opportunity to observe the manner of operating trolley-cars, and that, being bright and intelligent, thus he must have acquired sufficient knowledge of operating such cars to qualify him to intelligently perform the duties of trolley-tender. It .may be conceded that the plaintiff was of unusual intelligence for one of his years and quick to grasp ideas, but there is no evidence, other than that showing ability to. readily learn, that he did

We have thus considered the petition for a rehearing in extenso because of the importance of the legal questions involved in this record, and, furthermore, because we desired to express our views upon those questions as fully and as clearly as we conceived to be necessary and possible.

We are firmly of the conviction, for the reasons stated in the former opinion as well as those herein ventured, that no substantial reason has been shown or exists for a reversal of the judgment and order, and therefore the petition for a rehearing is denied.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 10,1912.