9 P. 99, 9,067, Durkee v. Central Pac. R. Co.

Docket Nº:9,067. [1]
Citation:9 P. 99
Opinion Judge:McKEE, J.
Party Name:DURKEE v. CENTRAL PAC. R. Co
Attorney:McAllister & Bergin, for appellants. H. F. Crane, for respondent.
Judge Panel:McKEE, J., ROSS, J.; McKINSTRY, J. We concur: ROSS, J.; McKINSTRY, J.
Case Date:December 23, 1885
Court:Supreme Court of California
 
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Page 99

9 P. 99

DURKEE

v.

CENTRAL PAC. R. Co

No. 9,067.
1

Supreme Court of California

December 23, 1885

         Department 1.

         Appeal from superior court, county of Alameda.

          SYLLABUS

         1. PRINCIPAL AND AGENT -- DECLARATIONS, ADMISSIBILITY AGAINST PRINCIPAL.

         Declarations by an agent or servant employed to perform a certain duty are not admissible against the principal, unless they are part of the facts and circumstances of some act happening within the scope of the servant's or agent's employment.

         2. RAILROAD -- NEGLIGENCE -- DECLARATIONS OF ENGINEER AS TO CAUSE OF INJURY.

         In an action of damages for injury to a child by a railroad train, the declarations of the engineer concerning the accident made from three to five minutes after the casualty happened, are admissible against the principal as part of the res gestæ.

         McAllister & Bergin, for appellants.

         H. F. Crane, for respondent.

         McKEE, J., ROSS, J.; McKINSTRY, J.

          OPINION

          McKEE, J.

         On the second of July, 1876, M. W. Durkee, a boy four or five years old, was run over by an engine belonging to and used at the time in the service of the corporation defendant. To recover damages for the personal injuries sustained by the boy on that occasion this suit was brought by his guardian ad litem against the

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railroad company, on the ground that the injuries were caused by the negligence of the company's engineer while driving the engine, which was attached to a train of cars running on the railroad from San Jose to Niles, in Alameda county. The evidence in the case tended to show that, on the day of the casualty, the train had arrived on the railroad track at the Warm Springs station at 4:35, and, according to schedule time, it was to leave there at 4:36. When it stopped at the station the nose of the pilot or cow-catcher just came to the south end of a trestle-work, which formed part of the railroad track across a creek at the station at a point where a county road, running east and west, crosses the trestle. The train was started on schedule time across the trestle at a speed of about six miles an hour, and, at that rate of speed, it had moved for about 20 feet on the south end of the trestle, when the engineer, seeing in front of him a human head rising up from between the ties, reversed his engine and called for brakes; but the train could not be stopped until the engine went over the boy. It was stopped within 30 or 40 feet on the trestle, and the boy was taken out from under the engine, badly mutilated.

         The main issue in the case was whether the boy was in such a position on the trestle that the engineer, by looking out in front, along the trestle, before starting his train, could have seen him on the trestle, and have avoided the casualty; or whether the boy was so concealed under the trestle as to be hidden from sight until he raised up his head at the approach of the engine, when it was impossible to stop it without going over him. The jury found that there was no contributory negligence on the part of the boy or of his parents, and that the injuries to the boy were caused by the negligence...

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