Weisser v. Southern Pac. Ry. Co and against the plaintiff." No instructions were asked in behalf of the appellee. Twenty-four instructions were asked in behalf of the appellant company. In these instructions the relation of fellow servants, what constituted the relation, and when it existed, were fully made known to the jury in language selected by counsel for the appellant company, and the question whether that relation existed between the motorman, Hunt, and the appellee, was fully and fairly submitted to the jury, to be determined from the testimony under concededly correct instructions of the court; and the jury were expressly instructed in instruction No. 5, that if they believed, from the evidence, "under the instructions of the court, that the plaintiff and the servant or servants in control of and operating such car, at the time and place in question, were fellow servants as defined in these instructions, then the plaintiff cannot recover under the first count of his declaration." This instruction, under the conceded facts of the case, secured to the appellant company all benefit that could have resulted from instruction No. 1 had it been given. The verdict is entirely consistent with the view that the jury concluded that Hunt and the appellee were fellow servants, and followed the direction of the court given in instruction No. 5, but found, from the evidence, that the appellant company furnished to such fellow servant an improper, unsafe and defective motor or trolley car, and that the injury was occasioned by such failure of the appellant company to discharge its duty as master, as charged in the second count of the declaration. We think there is no error in the record reversible in character. The judgment is affirmed. Judgment affirmed. WEISSER 7. SOUTHERN PAC. RY. Co. (Supreme Court of California, Jan. 15, 1906.) [83 Pac. Rep. 439.] Appeal-Record-Order Granting New Trial.-A copy of a letter written by the judge to appellant's counsel, stating the grounds upon which he granted the new trial, which grounds were not shown in the order for new trial, constituted no part of the record on appeal. New Trial-Order-Statement of Grounds.-A general order granting a new trial entered on the minutes of the court cannot be limited by an independent writing stating the grounds on which the new trial is granted. Appeal-Review-Grounds of Order for New Trial.-Though an order for new trial specifies the grounds upon which it was granted, the action of the court in stating such grounds cannot restrict the Supreme Court to the grounds so specified for the purposes of ascertaining whether or not a new trial should have been granted, except upon the single question as to the sufficiency of conflicting evidence. Same-Review of Discretion-Granting New Trial.-Though there may be some conflict in the testimony, it is the duty of the trial court to grant a new trial on the ground of the insufficiency of the evidence whenever the judge is convinced that the verdict is clearly against the weight of the evidence, and his action in that regard will not be dis Weisser v. Southern Pac. Ry. Co turbed on appeal, unless it is apparent that there has been an abuse of discretion. Master and Servant-Fellow Servants-Persons Serving Apprenticeship.*-A student brakeman, on freight trains of defendant at his own request and by permission of defendant, for the purpose of gaining experience to render him competent to act as a regular brakeman, and who was entirely subject to defendant's orders, and was required to perform such ordinary duties of brakeman as were allotted to him, was a fellow servant of the other trainmen, although he was receiving no pecuniary compensation. Department 1. Appeal from Superior Court, Los Angeles County; Waldo M. York, Judge. Action by Lawrence Weisser against the Southern Pacific Railway Company. From an order granting defendant's motion for a new trial, plaintiff appeals. Affirmed. S. V. Landt and M. E. C. Munday, for appellant. ANGELLOTTI, J. This is an action for damages for personal injuries alleged to have been suffered by plaintiff through the negligence of defendant while he was engaged in the service of said defendant. The jury impaneled to try the cause rendered a verdict in favor of plaintiff for $9,000, and judgment was entered accordingly. Defendant regularly made a motion for new trial on practically all the grounds authorized by statute, including that of insufficiency of the evidence to justify the verdict, and in its statement on motion for new trial specified with great particularity the particulars wherein it was claimed that the evidence was insufficient. The trial court disposed of such motion by making a general order granting the same, the minute order being as follows, viz.: "Defendant's motion for new trial ordered to be and the same is hereby granted." Plaintiff appeals from such order granting defendant's motion for new trial. It is suggested by plaintiff that the order of the trial court was based upon two grounds only, viz., error in admitting certain evidence, and insufficiency of the evidence to sustain a conclusion that the plaintiff was not guilty of contributory negligence, and that this court is limited to a consideration of these questions upon this appeal. In support of his claim that the order was made for these reasons alone, he sets forth in his brief a copy of a letter written to his counsel by the judge of the trial court, some months after the granting of the new trial. This letter, of course, constitutes no part of the record on appeal, and could not be made a part thereof. Hanna v. De Garmo, 140 Cal. 172, 174, 73 Pac. 830. Even if the same had been written and filed at the time of the granting of the new trial, it could not have operated to limit the effect of the general order entered on the minutes of the court, which order so entered is, under the decisions, the only *For the authorities in this series on the question who are, and are not, the employees of a railroad company, see foot-notes appended to Parrott v. Chicago Great Western Ry. Co. (Iowa), 16 R. R. R. 253, 39 Am. & Eng. R. Cas., N. S., 253; foot-notes appended to Atlanta & W. P. R. Co. v. West (Ga.), 14 R. R. R. 548, 37 Am. & Eng. R. Cas., N. S., 548. Weisser v. Southern Pac. Ry. Co record of the court's action. Any limitation, to be effectual, must be specified in the order. Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 621, 75 Pac. 332; Newman v. Overland Pac. Ry. Co., 132 Cal. 73, 64 Pac. 110. Furthermore, even if the trial court in this case had effectually specified in its order the grounds upon which it granted the new trial, its action in this regard could not have restricted this court to the grounds so specified in its examination of the record, for the purposes of ascertaining whether or not a new trial should have been granted, except upon the single question as to the sufficiency of the evidence where it was conflicting. Thompson v. Cal., etc., Co. (Cal. Sup.) 82 Pac. 367; Kauffman v. Maier, 94 Cal. 269, 276, 29 Pac. 481, 18 L. R. A. 124. As it is admitted that one of the grounds upon which the trial court based its action in granting a new trial was that the evidence was insufficient to sustain a conclusion that plaintiff was not guilty of contributory negligence, what has been said herein as to the questions reviewable upon this appeal is unnecessary for the purposes of the decision, and has only been said in view of the apparent misconception of the rules applicable in such matters. Upon the question as to whether plaintiff was guilty of contributory negligence, there was apparently some conflict in the testimony. This, however, was not sufficient to prevent the trial court from granting a new trial, on the ground of the insufficiency of the evidence. It is established by numerous decisions in this court that, although there may be some conflict in the testimony, it is the duty of the trial court to grant a new trial on such ground, whenever the judge is convinced that the verdict is clearly against the weight of the evidence, and his action in that regard will not be disturbed, unless it is apparent that there has been an abuse of the discretion confided to him. See Green v. Soule, 145 Cal. 96, 102, 78 Pac. 337; Bates v. Howard, 105 Cal. 173, 178, 38 Pac. 715; Mock v. L. A. Trac. Co., 139 Cal. 616, 73 Pac. 455; Bjorman v. Fort Bragg R. Co., 92 Cal. 500, 28 Pac. 591. The record on this appeal affords no basis for any claim that there was any such abuse of discretion in this case. It is therefore manifest that regardless of other reasons that may exist, the order granting a new trial must be affirmed. While it is unnecessary, for the purposes of a decision of this appeal, to consider any of the other points made in support of the order, the question as to whether plaintiff was a "fellow servant", of the employees of defendant on the train upon which he was engaged and by which he was injured, and therefore not entitled to recover from defendant if the injuries were wholly caused by the negligence of any such employee in the operation of the train (section 1970, Civ. Code), has been discussed by counsel, and its determination may be necessary for the purposes of a new trial. From the evidence of plaintiff it appears that, at the time of the accident, and for some time prior thereto, he was acting as a "student brakeman" on freight trains of defendant, at his own request and by permission of defendant, for the purpose of gaining such experience and knowledge of the work on defendant's Weisser v. Southern Pac. Ry. Co road as would, in the opinion of the defendant, render him fit and competent to act as a regular brakeman thereon, and to receive for his work a regular brakeman's pay. As such "student brakeman" he was entirely subject to the orders of defendant, and was required to perform such ordinary duties of brakeman as were allotted to him, just as fully as if he had been assigned regular employment for a pecuniary compensation by defendant. It is difficult to conceive of any reason why one, situated as these circumstances show plaintiff to have been, should be held to be other than an employee of the defendant, subject to all the obligations imposed by that relation. He was certainly in the service of defendant, regularly engaged in the doing of the defendant's business. The simple fact that he was not to be paid any money for his services cannot affect the question. It was perfectly competent for him to agree to serve an apprenticeship without pecuniary consideration. The important thing is that he voluntarily entered and was engaged in the service of the defendant upon such terms as he had seen fit to agree to. While so engaged in such service, there was no distinction, material to the question under discussion, between his situation and that of the other employees on the train. They were all regularly engaged in the service of defendant, in the common employment of operating a train for defendant. In other words, they were fellow servants. Plaintiff had the same right as the other employees to be indemnified for all injuries caused by the defendant's negligence, but his rights in this regard were no greater than those of the other employees, and, as în the case of such other employees, the defendant could not be held liable to him for injuries caused solely by the negligence of his fellow employees in the same general business, except in the cases specified in section 1970, Civ. Code. No case has been cited by plaintiff on this point. which is contrary to the views here expressed. On the other hand, the case of Millsaps v. Louisville, etc., Ry. Co., 69 Miss. 423, 13 South. 696, is squarely in point. There, one working as fireman on defendant's engine, with the permission of the defendant, for the purposes of learning the business, was killed in a collision caused by the negligence of a paid employee claimed to be a fellow servant. The Supreme Court held, under these facts, that plaintiff's intestate was the servant of the defendant and the fellow servant of the other employee, and that, consequently, no recovery could be had. The case of Barstow v. Old Colony Railroad Co., 143 Mass. 535, 10 N. E. 255, is also in point. See, also, Ladd v. Brockton St. Ry. Co. (Mass.) 62 N. E. 730; Wischam v. Richards (Pa.) 20 Atl. 532, 10 L. R. A. 97, 20 Am. St. Rep. 900. Under our views of the law upon this proposition, the trial court erred in the matter of instructions to the jury thereon, and this also is a sufficient reason for affirming the order granting a new trial. We do not consider it necessary, for the purposes of a new trial, to consider any of the other questions discussed. The order granting a new trial is affirmed. We concur: SHAW, J.; MCFARLAND, J. |