Donnelly

Plaintiff, the wife of an employee of the Southern Pacific Railroad, was traveling on a free pass from El Paso, Texas, to Sacramento, California, aboard a Southern Pacific train when it collided with an eastbound train standing upon a siding in California. Plaintiff brought this action against the railroad to recover damages for personal injuries suffered in the collision. The complaint alleges, and the answer admits, that before the collision one of defendant’s employees, in the course of his employment, set improperly the switch that controlled the siding, causing the westbound train to turn into the siding and collide with the eastbound train. No evidence was introduced on the question of negligence. The court instructed the jury that the plaintiff was entitled to recover from the defendant only if the switchman was grossly negligent in setting the switch. It defined gross negligence as “that entire want of care which would raise a presumption of conscious indifference to consequences; an entire want of care, or such a slight degree of care as to justify the belief that there was an entire disregard for and indifference to the safety and welfare of others.” The jury returned a…