78 Cal. 430, 11730, Magee v. North P. C. R. Co.

Docket Nº:11730
Citation:78 Cal. 430, 21 P. 114
Opinion Judge:SHARPSTEIN, Judge
Party Name:WILLIAM F. MAGEE, Respondent, v. THE NORTH PACIFIC COAST RAILROAD COMPANY, Appellant
Attorney:W. H. L. Barnes, for Appellant. Hepburn Wilkins, for Respondent.
Judge Panel:JUDGES: In Bank. Sharpstein, J. Thornton, J., Beatty, C. J., and Works, J., concurred.
Case Date:March 21, 1889
Court:Supreme Court of California
 
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Page 430

78 Cal. 430

21 P. 114

WILLIAM F. MAGEE, Respondent,

v.

THE NORTH PACIFIC COAST RAILROAD COMPANY, Appellant

No. 11730

Supreme Court of California

March 21, 1889

Page 431

Appeal from a judgment of the Superior Court of Marin County, and from an order refusing a new trial.

COUNSEL:

W. H. L. Barnes, for Appellant.

The complaint must be taken most strongly against the plaintiff. (Green v. Covillaud , 10 Cal. 317; 70 Am. Dec. 725; Sparks v. De la Guerra , 14 Cal. 108; Guy v. Washburn , 23 Cal. 111; Landers v. Bolton , 26 Cal. 418; Collins v. Townsend , 58 Cal. 608; Nev. Co. & Sac. Canal Co. v. Kidd , 28 Cal. 684.) That the defects were unknown to the plaintiff was essential to the cause of action. (Hallower v. Henley , 6 Cal. 209; McGlynn v. Brodie , 31 Cal. 376; McGatrick v. Wason, 4 Ohio St. 569; Malone v. Hawley , 46 Cal. 409; Conlin v. S. F. & S. J. R. R. Co ., 36 Cal. 405; Baxter v. Roberts , 44 Cal. 187; 13 Am. Rep. 610; Beeson v. G. Mt. G. M. Co ., 57 Cal. 20; Sowden v. Idaho Quartz Mining Co ., 55 Cal. 443; Sweeney v. Central Pacific R. R. Co ., 57 Cal. 15.)

Hepburn Wilkins, for Respondent.

The complaint need not aver want of contributory negligence, or want of knowledge of defects. (Robinson v. W. P. R. R. Co ., 48 Cal. 426; Yik Hon v. Spring Valley Water Works , 65 Cal. 619; Brown v. Central Pacific R. R. Co ., 68 Cal. 171; Wolfe v. Supervisors of Richmond, 11 Abb. 271; Conroy v. Oregon Construction Company, 10 Saw. 630; Crane v. Missouri Pacific R. R. Co ., 87 Mo. 588; Indianapolis & C. R. R. Co. v. Klein , 11 Ind. 38; Indianapolis & C. R. R. Co. v. Love , 10 Ind. 544; Holt v. Whatley , 51 Ala. 569; Karesborough v. Belcher Silver Mining Co ., 3 Saw. 446.) An employee is not bound to know of defects not in his department of labor; but may presume that the employer has furnished proper appliances in every department outside of that in which he is engaged. (Bowers v. Union Pacific R. R. Co ., 6 West Coast Rep. 726; Brann v. Chicago etc. R. R. Co ., 53 Iowa 595; Beeson v. Green Mountain Co ., 57 Cal. 20; Trask v. California Southern R. R. Co ., 63 Cal. 96; Gibson v. Pacific R. R. Co ., 46 Mo. 163; 2 Am. Rep. 497.) The code fixes the rule of liability. (Civ. Code, secs. 1970, 1971; Rodgers v. C. P. R. R. Co ., 67 Cal. 609; Patterson v. Pittsburg & Connellsville R. R. Co ., 76 Pa. St. 393; 18 Am. Rep. 412; Snow v. R. R. Co ., 8 Allen, 441; 85 Am. Dec. 720.) The plaintiff's knowledge or want of knowledge of danger was a question for the jury. (Phillips v. G. C. C ., 42 Wis. 596; Wilson v. Southern Pacific R. R. Co ., 62 Cal. 172.)

JUDGES: In Bank. Sharpstein, J. Thornton, J., Beatty, C. J., and Works, J., concurred.

OPINION

SHARPSTEIN, Judge

Page 432

This appeal is from a judgment and order denying a motion for a new trial. The first ground upon which appellant's counsel insists that the judgment should be reversed is, that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff alleges that he was in the employ of the defendant as brakeman and baggage-master, and was seriously injured by the train being thrown from the track by a bull which had intruded upon it. He further alleges that the fences inclosing the track were insufficient to prevent the intrusion of cattle thereon, and that the cow-catcher was not in a position to remove obstacles from the track; that the defendant knew of the defects in the fence, and the improper position of the cow-catcher. But he does not allege that he was ignorant of the defects in the fence, or of the improper position of the cow-catcher; and the omission so to allege constitutes, as appellant contends, a failure to state facts sufficient to constitute a cause of action.

In McGlynn v. Brodie , 31 Cal. 376, it is said, arguendo, that the pleader in that case had not "overlooked the necessity of averring in his complaint the essential fact 'that plaintiff had no knowledge that the same [cupola]...

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