Congrave

This action xvas brought by the widow and infant son of James W. Congrave, deceased, to recover damages for the death of the latter, who was killed by an accident on a railroad train of the defendant. A demurrer to the complaint was sustained by the court-below, and plaintiffs declining to amend, judgment went for defendant. From this judgment plaintiffs appeal.

The complaint avers that said Congrave, deceased, *363 was a brakeman in defendant’s employ, upon a train which left the town of Truckee on March 19, 1888, and started westward, destined for Sacramento City. It is averred, in general terms, that the deceased, as such brakeman, was “ placed by said defendant under the control and direction and subject to the orders of the conductor of said train”; but it is not averred that the accident which resulted in the death was caused, in whole or in part, by any order or direction given by said conductor to deceased, or that any order or direction whatever was so given. On the other hand, it appears affirmatively that the accident was not caused by any order or direction given by the conductor to said deceased. The complaint proceeds to state in detail the circumstances, facts, and…