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SUPREME COURT OF CALIFORNIA.

(67 Cal. 607)

RODGERS, Adm'x, v. CENTRAL PAC. R. Co.

(No. 9,988.)

Filed October 29, 1885.
RAILROAD COMPANIES-LIABILITY TO EMPLOYES-NEGLIGENCE.

Railroad companies are bound to provide for employes a good and safe road, with proper engines, cars, and appliances for conducting the business, and must select competent and reliable servants; and if, having taken this precaution, an injury results from some extraordinary cause, as an act of God, the company is not liable. If, however, the injury is the result of the operation of some act of God combined with the want of ordinary care on the part of the company, it will be liable; but if in such case the contributing cause on the part of the company is the result of its slight negligence only, the com

pany is not liable. JURY-EVIDENCE CANNOT BE RECEIVED OUT OF COURT.

Acts of a jury in receiving evidence out of court are improper.

Commissioners' decision.

Department 1. Appeal from superior court, county of Sacramento.

W. B. Treadwell, for appellant.
S. C. Denson, for respondent.

SEARLS, C. This is an action to recover damages for the death of plaintiff's son, claimed to have been caused by the negligence of the corporation defendant. Plaintiff had verdict, which was set aside by the court below, and a new trial granted. Plaintiff appeals from the order granting a new trial. James McGregor Rodgers, the intestate of plaintiff, who was a servant of defendant, and fireman on one of its locomotive engines, was killed in a train accident at China Gulch, in Shasta county. An important question at the trial was whether defendant was guilty of negligence in the construction and maintenance of a bridge across said gulch, by the fall of which the train in question was precipitated into a chasm, and decedent killed, or whether we accident was due to an enormous downflow of water, caused by what is familiarly known as a cloud-burst, and constituting what is designated as an “act of God.” The court below very properly instructed the jury, in effect, that if the accident was attributable to a “superhuman, or irresistible cause,”—to an "act of God,”—the defendant would not be liable; that as a general principle no man shall be responsible for that which no man can control, and then proceeded in his instruction as follows:

“But if, in addition to the act of God, so called, the intervention of man takes place, co-operating with it, and commingling with it to any extent, however slight, and an injury then results, the injury is to be ascribed, not to the act of God, which would constitute no defense in the case supposed, but to the act of man; and therefore, if the negligence of a human being concurs with the act of God, and causes an injury, the party thus negligent would be responsible therefor."

The objection taken to this instruction on the motion for new trial was that it did not discriminate between the different degrees of negligence; that it gave the jury to understand that if the act of the defendant in the slightest degree concurred with the act of God in producing the injury complained of, the defendant would be liable, without regard to whether the negligence proven on its part was slight, ordinary, or gross.

The court below was of opinion defendant was only liable to its employe for want of ordinary care, and not for slight negligence, and therefore that the instruction tended to mislead the jury, and was erroneous. “Where an employment is accompanied with risks of which those who enter into it have notice, they cannot, if they are injured by exposure to such risks, recover compensation from their employer.” Whart. Neg. $ 200.

Where, however, an employment involves special risks known to the employer, but of which the servant is not cognizant, and which are not patent, it is the duty of the employer to acquaint the servant therewith, and, failing to do so, he will be liable for injury from such risks suffered by the employe. Baxter v. Roberts, 44 Cal. 188.

Manifestly it was the duty of the defendant, a railroad company, to furnish alike to its passengers and employes a suitable and safe road, engines, cars, and appliances for conducting its business, to select competent and reliable servants, the nature of the business considered. This duty performed, and if from some extraordinary cause or condition, extrinsic to defendant's action, an injury results, defendant is not liable. Responsibility ceases where accident inter

If there is nothing to be imputed to a defendant, there is nothing with which he is chargeable.

If, however, the negligence of a defendant has combined with the act of God,—with inevitable accident,-in producing the injury complained of, he is liable.

The question presented here is as to the degree of negligence which thus combining with a superhuman or irresistible cause, will render a defendant liable. According to the instruction given by the court below, if the act of the defendant co-operated and commingled to any extent, however slight, with the accident, defendant would be liable. We do not think this is, or should be, the rule as to the liability of a defendant engaged in a lawful pursuit to his employe. “Where a man engaged in a lawful business exercises reasonable care, the law does not make him an insurer of others against those consequences of his actions which reasonable care and foresight could not have prevented. The law justly ascribes such consequences to inevitable misfortune, or to the act of God, and leaves the harm resulting from them to be borne by him upon whom it falls. The contrary rule would obviously be against public policy, because it would impose so

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great a restraint upon freedom of action as materially to check human enterprise.” Thomp. Neg. 1234, 1235. See, also, Brown v. Kendall, 6 Cush. 292; Morris v. Platt, 32 Conn. 75.

The Civil Code of this state, section 1971, is as follows: “An em. ployer must in all cases indemnify his employe for losses occasioned by the former's want of ordinary care.” The Code having thus established the rule by which to ascertain the liability of the employer to his employe, it is not within the province of the courts to depart from it. The instruction as given was violative of the rule, and the new trial was properly granted.

2. So, too, we think the acts of the jury in receiving evidence out of court were improper.

Other errors were assigned as grounds for the motion, but as the action of the court in awarding the new trial was based upon the points herein noticed, we do not deem further discussion necessary. We are of opinion the order appealed from should be affirmed.

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BY THE COURT. For the reasons given in the foregoing opinion the order is affirmed.

(67 Cal. 621)

Enos v. Sun Ins. Co. (No. 9,860.)

Filed October 30, 1885. 1. INSURANCE-EFFECT OF NOTICE TO INSURER'S AGENT.

Where the contract of an insurance company exempts it from the effect of any statement or act not contained in the written application for the policy, or indorsed on the policy, it is not bound by notice to its agent of anything

different from what the policy and application contained. 2. INSURANCE POLICY-WAIVER OF CONDITIONS.

Where a policy provides that a waiver of conditions contained in it can only be by indorsement or agreement on or attached to the policy, the local agent of the insurance company cannot waive the conditions of the policy except in

the manner provided. 3. INSURANCE POLICY-WORD “BUILDING” IN, CONSTRUED.

In determining whether a scow is within the provisions of a policy concerning a “ building,' evidence is proper to show that similar scows were used as buildings in the sense there used. Commissioners' decision.

Department 1. Appeal from superior court, county of Sacramento.

Grove L. Johnson, for appellant.
Freeman & Bates, for respondent.

FOOTE, C. Action on a fire insurance policy. The plaintiff had judg. ment for the amount claimed; the defendant moved for a new trial, which was denied. From the order made therein, and the judgment, an appeal was taken. The case was tried by a jury. One of the questions involved in it was whether or not the fishing scow which was insured was, in the policy of insurance, included in the word

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"building,” and thereby affected by all the terms and conditions of the policy as a building. The defendant contended that it was so included, and that therefore, it being unoccupied, both at the time it was insured and at the time it was burned, the plaintiff could not re

Another was wiiether or not the scow belonged, at the time the policy was issued, and it was burned, to the plaintiff, or to one Valine. The policy in question, among other things, contained the following clauses :

“(1) The assured covenants that every fact and circumstance affecting the risk or hazard adversely to this company has been fully made known to the company.

“(2) That this company shall not be bound by any act or statement which is not contained in the written application, or indorsed on this policy.

*(3) Waiver. The use of general terms, or any thing less than a distinct, specific agreement, indorsed or attached to this policy, shall not be construed as a waiver of any printed or written condition or restriction herein.

“(4) Conditions voiding this policy, without written permission indorsed hereon, or stated in writing in the application for this insurance, * * * or, if the above-described building or buildings, or either of them, now are or shall become vacant or unoccupied."

According to the second clause, it seems that the Sun Insurance Company, in its contract with the insured, had expressly exempted itself from being bound by “any act or statement" not contained in the application for the policy, or indorsed on said policy. Hence no notice to its agent as to anything different from what the policy and application contained would bind the company, and the defendant's instruction No. 4 on this point asked should have been given. Instruction No. 3 should have been granted, as the local agent, according to the terms of the policy, could not, as claimed, waive any of the provisions of the policy; it could only be done by writing on it or the application. Shuggart v. Lycoming Fire Ins. Co., 55 Cal. 408– 413; Gladding v. Insurance Co., 4 Pac. Rep. 764; McCormick v. Springfield Fire Ins. Co., 5 Pac. Rep. 617; Silverberg v. Phoenix Ins. Co., 7 Pac. Rep. 38.

The defendant offered to prove by the witness Frank I. Lewis, who had been for 14 years engaged in the fishing business on the Sacramento river, that scows of the kind and character as the one insured were used and occupied as buildings by the persons owning them; that in the fishing season such persons used them as residences and places of business, and that when the fishing season was over they used them as residences on land; that this particular scow was so used, and that in the same locality as that of the one in controversy other scows were so used. This evidence so offered was admissible; and upon it and the circumstances surrounding the transaction, it would have been proper for the court, by instructions, to have left the jury to determine as a matter of fact whether or not the parties making this contract of insurance intended that all the limitations and conditions thereof should apply to the scow as a building. This testimony having been excluded, the instructions on the point became useless and misleading.

None of the testimony as to conversations with Hoagland was competent. Nor was the proof offered by the defendant as to what consideration Enos had paid for the scow, as there was no question of a fraud on creditors involved in the case. In so far as the charge of the court announced the law to be different from what we have indicated it to be in this case there was error.

The judgment and order should be reversed, and the cause remanded for a new trial.

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BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are reversed, and cause remanded for a new trial.

(67 Cal. 625).

PEOPLE, etc., v. PITTSBURG R. Co. (No. 9,867.)

Filed October 30, 1885.

1. TAXATION-RIGHT TO CONTEST ASSESSMENT.

A person whose property is assessed for the purpose of levying a tax thereon should have an opportunity to be heard in opposition thereto, and for the purpose of contesting the amount assessed against him, and an act, such as the California act of March 18, 1874. & 9, which attempts to provide for an arbitrary assessment without the possibility of an equalization by the board of

supervisors, is unconstitutional. 2. SAME-ASSESSMENT-FAILURE TO FURNISH STATEMENT TO ASSESSOR.

An assessment made without giving the owner of the property an opportunity to contest the same is invalid and unconstitutional, notwithstanding the person assessed failed to furnish the assessor with a list of his taxable property as provided for by the California statute. Pol. Code, S 3629.

MYRICK and THORNTON, JJ., dissent.
In bank. Appeal from superior court of city and county of San
Francisco.

W. T. Baggett, for plaintiff.
T. B. Harmon, for respondent.

McKINSTRY, J. The action is to recover city and county and state taxes for the fiscal year 1880–81, as entered upon the “supplemental tax roll" under the act of March 18,1874. St. 1873–74, p.477. The assessment was made after the board of equalization had finally adjourned, and under the ninth section of the act above cited. The constitution of the state contemplates--First, assessment by the assessor; second, action by the county board of equalization; third, action by the state board of equalization. Under section 9 of article 13 the tax-payer is entitled to notice of the meetings of the county board at which his taxes may be increased. But the ninth section of the act of 1874 attempts to provide for an assessment by the assessor (of the city and

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