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ing that as to some of the wheels the brake , served the defect would have been discovershoes would not reach and hold. To remedy ed.

On the other hand, the rule in no de this defect, all that was essential was to gree added to the liability of the defendant, take up the surplus slack, which could be so as to make it liable to an employé for the done by shifting a key bolt in a lever from negligence of a fellow employé violating its one hole to another. This was a compara- | provisions.

provisions. It did not operate to make those tively simple thing to do, requiring the use engaged merely in switching its agents for only of a hammer and chisel, and occupied the inspection and discovery of defects in only 15 minutes in this case. This was ap- the cars, for whose negligence it would be parently the only defect in the brake. Plain-| responsible to other employés. That duty tiff's claim is that the injury was caused by had been contided to regular car inspectors, this defective brake, and that defendant was who represented their principal in that matnegligent in not having discovered and rem- ter, and for whose negligence the defendedied the defect. There was a rule of de- ant would be liable. The rule was simply fendant for the government of its employés one relative to the manner in which the which provided that running or flying switcli- switching (rew should perform the work of es must not be made except where it would switching, prohibiting the making of a flycause great delay to do the work in any ing switch by them without testing the other manner, and that whenever they are brakes. The distinction between train hands made the train must first be stopped and be- required by rule of the employer to make fore the engine is again started the switch some examination of the alliances on the and also the brakes on the car to be set out Cars operated by them for the ascertainment must be tested and great care usel.' This of defects preventing the proper operation rule. so far as it required the testing of thereof while in their charge, and those spiethe brakes, was entirely ignored by Waters cially charged by the eicployer with the reguand the remainder of the switching ('rew on lar duty of full inspection for the discovery the occasion in question. It is undisputed and remedying of deferts, is noted in several that no test of the brake was made by the cases cited by plaintifs, especially in the case crew before throwing the car on to the cripple of Eaton v. X Y. ('., etc., R. R. Co., 163 X Y. track, and that the brake was in no way ex- 391, 57 X. E. (09), 79 Am. St. Rep. 600. In amined or touched until Waters attempted to that case a recovery was allowed to a brakeuse it as heretofore described. The evidence man for injuries resulting from å defective was such that we cannot say that it was not brake on a car operated by him, notwithsufficient to sustain in conclusion that if standing a rule requiring brakemen at all the rule had been observed the defect would stoppings of the train 'to inspect the wheels, have been apparent and the accident avoided. brakes, and trucks of the car and report any

“We may assume, for the purposes of this defects immediately to the conductor,' where decision, that the evidence was such that it a reasonably careful inspection of the brake must be held that it was the personal duty by the employé would have disclosed the of the employer to use reasonable care to weakness of the parts of the brake. It was ascertain and remedy such a defect as liere said therein that while the effect of this existed, and also, that there was evidence rule was to impose on the trainmen the obwhich would have sufficiently supported a ligation of the examination of the appliances finding that it failed to use such care, and which their service compelled them to use, that this failure was the proximate cause of both for their own protection and the prothe accident. But, assuming all this, the tection of the property of their master and question as to whether defendant had so the persons of their fellow servants, the exfailed to exercise such care in the matter of amination contemplated was not that of an the inspection of the brake as to make it expert inspector, but only such as the ordiguilty of negligence was for the jury to de- nary knowledge of brakemen and the time termine, under proper instructions, from the allowed for the purpose consistent with their circumstances of the case as shown by the other duties would enable them to make. It evidence. It could not be liable unless it had was held that the train hands upon whom failed to exercise such reasonable care. It such a duty was devolved by rule were not appears very clear to us that, in the determi

follow servants of the regular inspectors of nation of this particular question, the viola- the railroad company. We can see no fountion by Waters of the rule requiring the dation for any contention that it was intendbrakes to be tested before making a flying ed by this rule to make the train operatives switch was an inmaterial matter. If at a engaged in the many and pressing duties of time when an inspection was required of operation the agents of the company for that the railroad company in the exercise of rea- thorough inspection of the appliances that is sonable care, by reason of a negligent failure required by law of the employer. The rule to inspect the brakes at all, or a negligent in- was merely one as to the manner of oper:spection, the defect remained undiscovered tion, and a negligent failure on the part of and caused injury, the defendant would be one of the switching (rew to comply thereliable for injuries proximately caused there- with could be, as respects other employés, by, notwithstanding a violation of this rule only the negligence of the employé and uot by Waters, even though had the rule been ob- tbut of the defendant.

"As we read various instructions of the trial court, however, the question as to whether defendant had been negligent in the matter of the inspection of the brakes was made to turn upon the violation of this rule by Waters. The jury was told, in instruction No. 15, that if it was the duty of Waters to test the brake before making a flying switch, and he negligently omitted to so do, the negligence of Waters was the negligence of the railroad company. In instruction No. 17, it was substantially said to the jury that if the brake was defective or insufficient by reason of slack, and Waters negligently onitted to inspect said brake, and by reason of such negligence on his part the car was allowed to run on to the cripple track and collide with the car under which plaintiff was working, inflicting the injury upon him, the verdict must be for the plaintiff and against the defendant, if plaintiff himself was free from fault. Instruction 18 was as follows: 'If you believe from the evidence that Waters negligently omitted to test the brakes of the loaded car in his charge on the 16th day of December, 1901, and if you believe that it became or was bis duty to test said brakes before or at the time he made a flying switch, if he made such flying switch, then, I charge, that his negligence is the negligence of the defendant corporation, and if by reason of his negligence the car in his charge collided with the car under which logarty was working, then your verdict must be in favor of the plaintiff and against the defendant corporation for an amount not exceeding the amount prayed for in plaintiff's complaint, if you further believe from the evidence that the plaintiff himself was free from fault. The effect of these instructions plainly was to render Waters, solely by reason of this rule, the vice principal or personal agent of the defendant for the inspection of the car, and to make the violation of the rule by him negligence on the part of the defendant. By them the jury was clearly instructed that if Waters had violated the rule, which concededly he had done, his violation thereof was negligence on the part of defendant, and if the injuries to plaintiff were caused by this violation of the rule, the verdict must be for plaintiff. We can conceive of no sound theory upon which these instructions can be upheld. Waters was not the personal representative of the defendant in this matter, and his failure to observe the rule enacted by the defendant for its own protection and the protection of Waters himself and his fellow employés was not negligence on the part of the railroad company. As we have intimated, there may have been sufficient evidence to Warrant the jury in finding that the defendant had been negligent in the matter of inspecting this car, and that the accident was caused thereby; but such negligence is not shown as a matter of law, and we cannot say, in the face of these instructions, that the jury so found. They may have concluded simply that the failure of Waters to observe

the rule caused the accident, and that the only negligence on the part of defendant was this violation of the rule by Waters, for so concluding their verdict would have been warranted by the instructions. It does not assist that the trial court in two other instructions charged the jury in direct conflict with the instructions above referred to, and in terms too favorable to defendant. The conflicting statements of the court in this regard were each equally positive and plain, and no one can tell which the jury foi.owed. It follows that a reversal must be had on account of these instructions.

"One or two other matters should be discussed for the purposes of a new trial. Much of the argument of counsel has been devoted to the contention of defendant that the condition of slack in the brake was a mere matter of detail in the operation o. the car, not involving any breach of original duty on the part of the employer, and the remedying of which was a part of the proper operation of the car by train hands or switching crew. By this contention, it is sought to bring the case within the doctrine of Helling v. Shindler, 145 Cal. 303, 78 Pac. 710, where the rule that the employer is not liable for defects arising in the daily use of an appliance which are not of a permanent character and do not require the help of skillful mechanics to repair, but which may easily be and usually are repaired by the workmen, and to repair which proper and suitable materials are supplied, was applied in the case of an injury to an operative on a planing machine, the knife of which had become dull and tl:e belt slack by use therein by him and others using the machine with him. See, also, Towne v. Electric Co., 116 Cal. 766, 81 Pac. 121, 70 L. R. A. 214; Leishman v. Union Iron Works, 8: Pac. 30, 148 Cal. 271, 3 L. R. A. (N. S.) 500. It was there said that this rule is, 'at least so far as those engaged in the common use of an appliance are concerned' sustained by the great weight of authority. This rule is à qualification of the general rule relative to the duty of the employer to furnish an appliance that is reasonably safe, and to use reasonable care to keep the same in proper repair, and, as stated in Helling v. Schindler, supra, it ‘relates only to such slight defects attendant upon the operation of machinery as from their nature require remedying at the hands of the operators themselves and as a part of the proper operation of the machine.' It was manifestly applicable to such defects as were considered in that case, under the circumstances there appearing. We are unable, however, to see the application of this rule to the case at bar. The management of cars by train bands is a very different matter from the operation of a single piece of machinery that is continually under the direct management of a single employé or a single group of employés, to whom the slight defects attendant upon the daily use of the appliance, such as the dullness of knives, be

come at once apparent. In the case of a rectly to plaintiff's injuries, and plaintiff himrailroad of any considerable extent, any par- self was not guilty of contributory negliticular car is only very temporarily in the gence, it is liable for such damages as will charge of any particular group of train hand properly compensate plaintiff for such injuemployés, and their work in regard thereto ries. In determining the question of fact as has ordinarily to do oniy with its operation to whether reasonable care was used in the as a completed appriance, and consists sim- matter of inspection, it is, of course, proper ply in moving it as the needs of the railroad to take into consideration with the other circompany may require. The most that can be

The most that can be cumstances the fact that the car was not said of the evidence relative to the duty of then being used for transportation purposes, train hands or switching crew as regards the but was being temporarily kept for unloadwork of remedying such a defect as here ing in the San Luis Obispo yard of defendant, existed was that, where the same became and also that there was a rule prohibiting apparent in the course of the operation of the employés from making a flying switch the car, they should take up the slack. This with it without first testing its brakes. was simply emergency work. There was There was some evidence tending to show nothing to indicate that it was the general that the difficulty with this brake was of a duty of such operatives to keep the brakes in character that such cursory test by a switchproper condition in this regard, and clearly man as may properly be held to be contemsuch a requirement would generally be im- plated by this rule would not disclose it. All practicable, considering the other duties and these are circumstances which may justly be obligations of such employés. It appears to considered in arriving at a conclusion as to be thoroughly settled by the authorities that whether reasonable care was exercised by it is the primary and nonassign:ble duty of defendant in the matter of keeping the car the employer to use reasonable care to dis- in proper condition; their effect being solely cover and remedy any defect in the car as a for the jury. If the accident was in no decompleted appliance, and that it is responsi- gree caused by the negligence of defendant, ble to any employé injured by reason of its but was wholly due to the neglect of employés failure to so do, except, of course, to an em- in a mere matter of detail in the operation ployé whose duty it is to discover the defect, of the car, defendant cannot be held liable. and whose negligent failure to do so con- “It cannot be said that the evidence showtributes to his own injury. The duty of ed plaintiff guilty of contributory negligence reasonable inspection by the employer for the as a matter of law. Defendant does not discovery of any defect that would render point out specifically wherein the instruction the operation of the car dangerous is 'rigidly of the court upon this subject was erroneous. insisted on, and we can see no reason why If plaintiff was negligent in the matter of this requirement does not include any defect not indicating his presence under the car by in the adjustment of the brakes which ren- flags, and his negligence directly contributed ders them wholly ineffectual, however arising, to his injuries, there can, of course, be no rejust as fully as any other defect. The em- covery. ployer cannot escape responsibility in this "Other points made by defendant will probmatter by any delegation of the duty. See ably not arise on a new trial, and need not Bailey v. Rome, etc., Co., 139 N. Y. 302, 31 here be considered. N. E. 918; Eaton v. N. Y., etc., Co., 163 N. Y. "The judgment, the modified judgment, and 391, 57 N. E. 609, 79 Am. St. Rep. 600; the orders denying a new trial are reversed, Chicago, etc., Co. v. Kneirim, 152 Ill. 458, 39 and the cause remanded. X. E. 324, 43 Am. St. Rep. 259; Cincinnati, etc., Co. v. McMullen, 117 Ind. 439, 20 X. E.

"We concur: SHAW, J.; SLOSS, J." 287, 10 Am. St. Rep. 67; Sheedy v. Chicago, etc., Co., 55 Minn. 357, 57 N. W. 00; Bender

Wm. F. Herrin, P. F. Dunne, and W. S. v. St. Louis, etc., Co., 137 Mo. 240, 37 S. W.

Spencer, for appellants. Sullivan & Sulli132; Union Stock Yards Co. v. Goodwin, 57

van and Theo J. Roche, for respondent. Neb. 138, 77 N. W. 357; Galveston, etc., Co. v. Templeton, 87 Tex. 42, 26 S. W. 1066; ANGELLOTTI, J. A rehearing was grant. Richmond, etc., Co. v. Burnett, 88 Va. 538, 14 ed in this case, after decision in departS. E. 372; Texas, etc., Co. v. Archibald, 170 ment, principally because of the complaint U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188. of plaintiff that no reason had been assigned The question as to defendant's negligence, as for the reversal as to the defendants Nelson we look at it, in view of the evidence con- and Waters, employés of the principal detained in the record, was simply this: Did fendant and fellow servants of the plaintiff. defendant fail to use reasonable care, that Upon the reargument, plaintiff's counsel, is, such care as was under all the circum- while urging that the judgments and orders stances reasonably consistent with a due should be affirmed as to the railroad comregard for the safety of its employés, in in- pany, stipulated that, in the event of revers specting this car for the discovery and rem- al as to it, the judgments and orders should edving of such defects as would render the also be reversed as to the other defendants. car an unsafe appliance? If it did not do We are satisfied that this course should be this, and its failure to do so contributed di- adopted. On further consideration, we see no reason to modify the views expressed in discovery and remedying of which was a the department opinion as to certain instruc- part of the regular operation of the car by tions given to the jury at the request of the train hands or switching crew, was discussed plaintiff, and on account of which the re- in the former opinion in the light of the versal was ordered.

evidence contained in the record. We are Learned counsel for defendant railroad satisfied with the views expressed in the company earnestly urge that the department opinion in regard to that question, as apopinion be modified in certain particulars. plied to the case shown by such record, and Much of what is said by counsel in this be- see no occasion to add thereto. half is due we cannot but feel to a miscon- The portion of the former opinion reading ception of the opinion. Certainly, that opin- as follows: "If at the time when an inion cannot be construed as declaring that the spection was required of the railroad comproximate cause of the accident was the non- pany in the exercise of reasonable care, by adjustment of the brake. The assumption reason of the negligent failure to inspect to this effect of which defendant complains the brakes at all, or a negligent inspection, was expressly limited in the opinion to the the defect remained undiscovered and caused discussion of the question as to the alleged injury, the defendant would be liable for innegligence of the defendant in the matter juries proximately caused thereby, notwithof the inspection of the brake, and the in- standing a violation of this rule by Waters, struction given to the jury in that connec- even though had the rule been observed the tion, and on account of which the reversal defect would have been discovered”-should was ordered. It is declared, in effect, over be stricken out, together with the words “on and over again in the opinion, that the ques- the other hand," immediately succeeding. tion as to the proximate cause of the acci- With this exception the department opindent was, in this case, one for the jury. Un- ion is adopted as the opinion of the court less the jury can find, upon sufficient evi- in bank, supplemented by what we have heredence, that the railroad company was neg

tofore said. ligent in the matter of the inspection of The judgment, the modified judgment, and the brake, and that this negligence contrib- the orders denying a new trial are reversed, uted directly to plaintiff's injury, there can, and the cause remanded. of course, be no recovery by plaintiff. If the accident was wholly due to the negligence

We concur: SHAW, J.; SLOSS, J.; HENof a fellow servant of plaintiff, or disobedi

SHAW, J.; LORIGAN, J. ence by him of a reasonable rule enacted for his guidance in the operation of the car, either as to the making of a flying switch

(6 Cal. App. 103) at all, or examining the brakes before mak

PEOPLE v. SOLANI. (Cr. 39.) ing the same, there can be no recovery, even though the defendant had itself been negli

(Court of Appeal, Third District, California. gent. Kevern v. Pro., etc., Co., 70 Cal. 394,

July 10, 1907.) 11 Pac. 740; Vizelich v. S. P. Co., 126 Cal. 1. CRIMINAL LAW-FORMER JEOPARDY-PLEA 587, 59 Pac. 129; Luman v. Golden, etc., Co.,


A plea of former jeopardy, failing to state 140 Cal. 707, 74 Pac. 307. The evidence in

where the judgment of conviction was rendered, the record before us cannot be held, as a as required by Pen. Code, $ 1017, subd. 3, was matter of law, to show what was the proxi- fatally defective. mate cause, and hence the question is neces

2. SAME-TIME. sarily one for the trial jury. It should also

A plea of former jeopardy may be inter

posed at any stage of the trial. be said, in this connection, that the showing [Ed. Note.-For cases in point, see Cent. Dig. in the record now before us, as to whether vol. 14, Criminal Law, 8 667.] the conditions were such as to make the rule 3. SAME-PRIOR CONVICTION OF LESSER OFprohibiting a flying switch "except where it FENSE. would cause great delay to do the work in

Where a new trial is granted after con

viction of manslaughter on an information for any other manner" applicable, is extremely murder, it is no violation of defendant's constiweak, if, indeed, there can be said to be any tutional right to protection against being twice showing at all on the subject. It was be

put in jeopardy for the same offense to again

place him on trial for murder, unless he pleads cause of this that the matter was not re

former conviction. ferred to in the former opinion. If defend

4. SAME-HARMLESS ERROR. ant relies on a violation of this portion of A new trial having been granted defendthe rule, it should make it appear that the

ant after conviction of manslaughter on an

information charging murder, he was again plawork could have been otherwise done without

ced on trial for murder, and the trial proceeded what would have been "great delay" under without any plea of former conviction until nearthe existing circumstances. Five or ten min- ly all the instructions had been given, when an

ineffectual plea of former conviction was ofutes might have constituted such a great

fered. This was disallowed, and was not correctdelay under certain circumstances.

ed until the jury had reached a verdict conThe question as to whether or not the con- victing defendant of manslaughter. Held, that

defendant, having received the same sentence at dition of slack in the brake was a mere mat

both trials, was not prejudiced by the court's ter of detail in the operation of the car, the denial of the plea.

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5. SAME - ADMISSION OF EVIDENCE - CURING the jury five forms of verdict which do not ERROR.

appear in the record. The instructions were In a prosecution for homicide, the court having withdrawn from the jury a statement

full and clear as to what constitutes murder alleged to have been made by defendant while in the first and second degree and manin jail, and haring admonished the jury to dis- | slaughter, and it must be presumed that regard the statement, any error in its admission the forms of verdicts embraced manslaughwas cured. [Ed. Note.-.For cases in point, see Cent. Dig.

ter among other crimes of which defendant vol. 1.), Criminal Law, § 3111.]

might have been found guilty or not guilty. 6. SAMEESPERIMENTS.

Later, when the jury was about to return Where, in a prosecution for homicide, the with its verdict, but before it had been evidence was conflicting and unsatisfactory as brought into the courtroom, defendant asked to there being any powder marks plainly dis- leave to correct his plea of jeopardy so as to cernible around the wound on deceased's body, it was not error to refuse to permit a witness to

state therein at what place the former judgtestify with reference to experiments made at ment of conviction had been entered and that various distances with a revolver loaded with the jury "be directed to return a verdict of black powder, as to whether powder marks were left on pieces of white paper; the caliber

once in jeopardy.” The court directed that of the revolver used for the experiments not the jury be brought in, without giving any being shown with certainty to be the same as further instructions. Thereupon the jury that used by defendant, and there being no evi

came into court and rendered its verdict of dence that the cartridge used was similarly loaded.

murder in the second degree. Before it was [Ed. Note.-.For_cases in point, see Cent. Dig. recorded defendant objected to the recording vol. 14, Criminal Law, $ 8.74.]

of the verdict on the ground that "the court

is without jurisdiction to pronounce the judgAppeal from Superior Court, Sonoma

ment allowed by law, and the verdict is illeCounty ; Emmett Sea well, Judge.

gal, and the jury without legal authority to John Solani was convicted of manslaugh- find the same.” Motion was regularly made ter, and he appeals. Affirmed.

in arrest of judgment and for a new trial, W. F. Cowan and Jos. P. Berry, for appel- which was denied, and defendant appeals lant. U. S. Webb, Atty. Gen., for the People. from the judgment and order denying his

said motion. CHIPMAX, P. J. Defendant was convict- 1. The principal question presented by the ed of the crime of manslaughter upon an in- appeal arises out of the refusal of the court formation charging murder. Ile appealed to permit the defendant to plead jeopardy. from the judgment of conviction to this If, as appellant contends, the court was withcourt and a new trial was ordered 2 Cal. out jurisdiction under any circumstances to App. 225, 83 Pac. 281. At his second trial be try him for the crime of murder, clearly he was tried upon the original information. lle had the right at any stage of the trial to was not again arraigned, and the trial pro- raise the question by any appropriate step. ceeded without further plea of the defend- | But in the numerous cases where there has ant than his original plea of “not guilty:" been a new trial grantel, after conviction of After the cause had been argued to the jury | manslaughter upon an information for murand as the court was about concluding its der, thus acquitting the defendant of the instructions, counsel for defendant asked crime of murder, the Supreme Court of our leave to interpose a plea of once in jeoparily state has held that it is no violation of the and former acquittal, and also asked the defendant's constitutional right to protection court to instruct the jury upon the theory of against being placed twice in jeopardy for once in jeopardy. The plea offered was de- the same offense, unless he pleads former fective, in failing to state where the julg- conviction. It was said in People v. Benment of conviction was rendered, as requir- nett, 114 Cal. 58, 45 Pac. 1014: The law's ed by subdivision 3, § 1017, of the Penal method must be pursued by him who asks Code. The court declined to allow the read- the protection of the law." It was also said: ing of the instructions to be interrupted and The fact that the first trial was held in the stated that it would later consider the offer same court, and before the same judge as of defendant. At the conclusion of the read- the second trial, in no way excused the neing the matter was again brought before cessity of the plea of once in jeopardy." the court. It appears that at the opening of The question was discussed at some length the trial it was agreed between the district in People v. McFarlane, 138 Cal. 481, 71 Pac. attorney and defendant's counsel that defend- 568, 72 Pac. 48, 61 L. R. A. 215, where the ant would take 20 peremptory challenges was opinion upon the point met the concurrence long as this information charged murder," of the full court by refusing a rehearing. and that the case was tried and the instruc- Yothing in People v. Smith, 134 Cal. 453, 66 tions framed upon the theory that the charge Pac. 669, can be said to be in conflict with being investigated was murder. It further the views expressed in People v. McFarlane, appeared that to grant defendant's request which is confirmed by the fact that the writwould have required the instructions already er of the opinion in the Smith Case inferengiven to be recast to some extent. 'pon tially approved the opinion in the McFarlane this state of facts the court denied defend.

In the recent case of Huntington v. ant's request. The court, thereupon, gave

gave | Superior Court (Cal. App.) 90 Pac. 141, the


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