Vaughn

Pierce B. Vaughn, a young man about twenty-seven years old, was killed by an accident on the railroad of the corporation defendant; and this action was brought by his father and mother (as heirs) to recover damages for his death under section 377 of the Code of Civil Procedure. The verdict and judgment went for plaintiffs. Defendant appeals from the judgment, and from an order denying a new trial.

The jury, in addition to a general verdict, returned answers to a large number of special issues submitted to them; and appellant contends (among numerous other points) that the general verdict is in conflict with the findings on the special issues, and therefore cannot stand. We think appellant right in this contention. ■

Paragraph 4 of the complaint is as follows: —

Paragraph 5 is as follows:—

An amendment to the complaint contains the following averments: —

It is apparent that the gist of the alleged cause of action lies in the averments contained in said paragraph 5 of the complaint, and in the matters averred in the amendment, and that the theory of the pleader was, that appellant was liable in damages on account of the carelessness with which the train was run, the…

I concur in the judgment. I think the pleader in the complaint counts on the negligent and defective manner in which the track was originally constructed and subsequently maintained, as well as on other acts of negligence by the defendant. For negligence in constructing and maintaining its track, an employee can recover against a railway company. (Trask v. Cal. S. R. R. Co., 63 Cal. 96 .) But in this case the deceased, Vaughn, went out on a train sent for the purpose of repairing the track, which had been damaged by washouts caused by a severe storm which had a short time previously occurred. He knew the train was sent out for this purpose and on an errand of danger. By going on this train, he accepted the risks incident to its passage over the track. Under these circumstances, I cannot see how the plaintiffs can recover.