by the governor of such other state to be authentic, show a sufficient foundation for the warrant of arrest, and the facts thus recited will be taken as true upon a writ of habeas corpus, if not disputed. It is not necessary to set out in the warrant a copy of the indictment or affidavit charging the petitioner with crime, nor a copy of the governor's authentication thereof.

APPLICATION for writ of habeas corpus. The facts are stated in the opinion of the court.

Charles F. Hanlon, for Petitioner.

George A. Rankin, for Respondent.

WORKS, J.-This is an application for a writ of habeas corpus. The ground upon which it is claimed that the petitioner is illegally imprisoned is, that he is held under a warrant of the governor on an alleged requisition of the governor of the state of Colorado, and that the warrant and such requisition are each and both illegal, in that no copy of any indictment found, nor any copy of any affidavit made before a magistrate of any state or territory, charging the petitioner with having committed treason, felony, or any other crime, either certified as authentic by the governor of the state of Colorado or at all, has ever been produced to the governor of the state of California.

The officer having the petitioner in charge makes return that he holds the petitioner by virtue of a warrant issued by the governor of this state, which warrant is made part of his return, and recites, among other things:

"Whereas, it has been represented to me by the governor of the state of Colorado that Peter R. Lewis stands charged with the crime of fraudulent conveyance, committed in the county of Arapahoe, in said state, and that he fled from the justice of that state, and has taken refuge in the state of California; and the said governor of Colorado having, in pursuance of the constitution and laws of the United States, demanded of me that I shall cause the said Peter R. Lewis to be arrested and delivered to

Charles A. Hawley, who is authorized to receive him into his custody and convey him back to the said state of Colorado; and whereas, the said representation and demand is accompanied by a complaint and information, affidavits, and warrant of arrest, whereby the said Peter R. Lewis stands charged with said crime, and with having fled from said state and taken refuge in the state of California, which are certified by the governor of the state of Colorado to be authentic," etc.

The facts thus recited are not disputed, and we think they show a sufficient foundation for the warrant.

Writ denied.

THORNTON, J., and BEATTY, C. J., concurred.

[No. 12660. In Bank.-April 30, 1889.]

BARTHOLOMEW FAGUNDES, RESPONDENT, v. CENTRAL PACIFIC RAILROAD COMPANY, APPEL

LANT.

NEGLIGENCE RAILROAD-LABORER IS FELLOW-SERVANT WITH TRACKWALKER AND CONDUCTOR.-A laborer employed by a railroad company to remove snow and other obstructions from its track is a fellow-servant, and employed in the same general business, with a track-walker and train conductor, and for personal injuries to him caused by the combined negligence of the latter two the company is not liable.

ID.-NEGLIGENCE WHEN QUESTION OF LAW.-Where the facts are undisputed, the question of negligence is one of law, to be passed on by the court.

ID.-RENEWAL OF MOTION FOR NONSUIT EVIDENCE.—It is not error to permit a defendant to renew a motion for a nonsuit after introducing evidence in its own behalf, when the entire evidence is such that if the motion had been denied and a verdict found for the plaintiff, it would have been the duty of the court to set the verdict aside as not supported by the evidence.

APPEAL from an order of the Superior Court of Placer County granting a new trial.

The facts are stated in the opinion.

LXXIX. CAL-7

Hale & Craig, for Appellant.

The defendant is not liable, as the evidence shows that the deceased and the track-walker and conductor were fellow-servants, engaged in the same common employment. (Civ. Code, sec. 1970; Yeomans v. Contra Costa S. N. Co., 44 Cal. 71; Hogan v. Central P. R. R. Co., 49 Cal. 128; Collier v. Steinhart, 51 Cal. 116; McLean v. Blue Point Gravel Min. Co., 51 Cal. 257; McDonald v. Hazletine, 53 Cal. 35; Beeson v. Green Mountain G. M. Co., 57 Cal. 20; Brown v. Central P. R. R. Co., 72 Cal. 523.) In cases like the present, where the evidence is uncontradicted, the question of negligence is one of law. (Flemming v. W. P. R. R. Co., 49 Cal. 253; Fernandes v. Sacramento R. R. Co., 52 Cal. 50; Sweeney v. C. P. R. R. Co., 57 Cal. 15; Glascock v. C. P. R. R. Co., 73 Cal. 137.) T. H. Laine, and Wallace & Prewett, for Respondent.

The deceased and the track-walker and conductor were not fellow-servants. (Chicago & M. R. R. Co. v. Ross, 112 U. S. 390; St. Louis & S. F. R. R. Co. v. Weaver, 35 Kan. 412; Hobson v. N. M. & A. R'y Co., 11 Pac. Rep. 545; Beeson v. G. M. G. Co., 57 Cal. 21; McKune v. Cal. S. R. R. Co., 66 Cal. 302; Brown v. Sennett, 68 Cal. 226; 58 Am. Rep. 8; Sanborn v. Madera F. & T. Co., 70 Cal. 262; North P. R. R. Co. v. Hubert, 116 U. S. 646.)

FOOTE, C.-The plaintiff brought this action to cover damages for the death of his son, caused by the alleged carelessness of the defendant.

After the introduction of the evidence on the part of the plaintiff, the defendant moved for a nonsuit, which was refused. It then introduced evidence in its own behalf, after the conclusion of which a motion for a nonsuit was again made and granted. The plaintiff then moved for a new trial, which the court allowed, from which the defendant appeals.

There is no conflict in the evidence.

The deceased was a laborer employed by the defendant to remove snow and other obstructions from its track, and was under the immediate control of a road-master.

He had directed the former to take his place in the car having sleeping accommodations, in company with other laborers, to be transported by an expected train to another part of the road, in order that he might perform certain work which had to be done in clearing the track of snow.

The laborers were asleep in the car on a side-track, when a train which had to get upon that track, in order to permit a passenger train to pass, collided with the car in such a way as to cause a snow-shed to fall upon it, whereby the deceased was killed. The accident was primarily caused by a track-walker, by the name of Joe Rabbitt, who interfered with a switch with which he had no concern, turning the car-wheels in the wrong direc-/ tion, and of the conductor of the train, perhaps, in not being sufficiently on the alert to prevent the intermeddling of Rabbitt. Conceding, without deciding, that the evidence was responsive to the issues made by the pleadings, the question to be determined is, whether or not the Central Pacific Railroad Company is responsible for the carelessness of the conductor and track-walker.

If they are to be held as the fellow-servants of the deceased, and engaged about the business of their common master, in the same general employment, then the company would not be responsible, unless the record shows that the defendant neglected to use ordinary care in the selection of the conductor and track-walker. (Civ. Code, sec. 1970; Stephens v. Doe, 73 Cal. 28; McLean v. Blue Point Gravel Mining Company, 51 Cal. 257; Fisk v. C. P. R. R. Co., 72 Cal. 42; Brown v. C. P. R. R. Co., 72 Cal. 523.) There is nothing in the evidence which tends to show any negligence on the part of the defendant in the selection of the employees whose carelessness caused the casualty.

Neither the conductor nor track-walker is shown to have had anything to do with the selection of employees for the company, nor is it made evident that either of them was in any sense managing assistant for it in the conduct of its general business as a railroad company. They had with the laborer who was killed certain duties to perform as employees of the company, in the same general business. The conductor ran the train, the track-walker was to see that the track was clear of obstructions, and to signal when they existed; the laborer was engaged on his part in helping to keep the track in good order, so that the trains might run upon it in safety; they all must have known the dangers incident to their employment; they were fellow-servants of the same employer, and employed by it in the same general business. The deceased met his death through the negligence of the conductor and track-walker, and not that of the railroad company, which, therefore, is not responsible.

The exception taken to the order permitting the defendant to renew its motion for a nonsuit after introducing its evidence is not well taken, for if the motion had been denied and a verdict found for the plaintiff, it would have been the duty of the court to have set aside the verdict as not supported by the evidence. (Vanderford v. Foster, 65 Cal. 49.)

In cases where the facts are undisputed, the question of negligence is a question of law to be passed on by the court. (Glascock v. C. P. R. R. Co., 73 Cal. 137, and cases cited.)

The judgment of nonsuit was correct, and the order granting a new trial should have been refused.

For these reasons we advise that the order appealed

from be reversed.

BELCHER, C. C., and HAYNE, C., concurred.