Cosgrove

It is claimed that the accident occurred by reason of the negligence of the engineer, a servant of the defendants and a fellow-servant with the deceased. To support plaintiff’s case under this state of facts it was not only necessary to prove that the engineer was intoxicated at the time of the accident, but that defendants were guilty of negligence in employing him. It was proven that his general reputation for sobriety was bad, and it may be conceded for the purposes of this case, at least, that defendants were lacking in the exercise of due and proper care in hiring such a man. But there is no evidence in the record that he was intoxicated at the time of the accident, and nothing therein from which we are justified in drawing an inference to that effect. I concur in the judgment.

De Haven, J., concurred in the opinion of Mr. Justice Garoutte.

Rehearing denied.

The defendants are stevedores, and in August, 1885, were engaged in discharging a cargo of coal from the vessel “ Henry Hyde,” then lying at one of the wharves in San Francisco. The plaintiff’s intestate was in their employ, and while so engaged a tub of coal, which was being hoisted from the hold of the vessel, swung around so that it might be emptied into another vessel alongside, and struck him with such force as to cause injuries from which he died. The plaintiff, as the administratrix of his estate, brought this action against the defendants to recover the damages sustained by his death, alleging that it was caused by reason of their negligence. The coal was hoisted by means of a donkey engine on the wharf, which was in charge of an engineer named Murphy, who at signals from another employee started and stopped the engine; and it is claimed by the plaintiff that the injury to the deceased was caused by the negligence of this engineer; and, in order to avoid the rule of law which exonerates the employer from liability to an employee for an injury resulting from the negligence of a fellow-servant, the *272 plaintiff sought to show that Murphy was addicted to the habit of…