In the petition for rehearing, on the part of the defendants, it is suggested that, the attention of the court having been particularly directed to a consideration of the question as to who was the master or employer of the engineer — whether the city of Oakland or the California Improvement Company — the real question, to wit, whether the engineer was liable at all, has been overlooked. The liability of the engineer is a necessary postulate to the discussion or inquiry in reference to who was his employer or master. If the damages resulted without any negligence on the part of the engineer, it would be altogether immaterial who employed him, or who was responsible for his acts. The court, therefore, could not, and did not, overlook that question. But as the argument of the respective counsel was directed mostly *Page 132 to the controversy as to who employed the engineer, or was responsible for his acts, necessarily the opinion is mostly devoted to the consideration of that question. The court below finds that the injury to the plaintiff was caused by the negligence of the defendant, the engineer, Conger, without any fault or negligence on the part of the plaintiff, and that at the time the relation of master and servant existed between the California Improvement Company and said defendant Conger. These findings are supported by the evidence.
Rehearing denied.