A brakeman on a regular train of a railroad and the conductor of
a wild train on the same road are fellow-servants, and the railroad
company is not responsible for injuries happening to the former by
reason of a collision of the two trains, caused by the negligence
of the latter, and by his disregard of the rules of the
company.
Page 167 U. S. 49
This was an action originally brought in a court of the State of
Washington, and which was removed into the Circuit Court of the
United States for the District of Washington.
The plaintiff, in his complaint, alleged that, on the 7th day of
December, 1892, while in the employ of the Northern Pacific
Railroad Company as a brakeman, he received personal injuries of a
severe character, occasioned by the negligence of the defendant
company. The plaintiff recovered a verdict in the sum of $21,600,
which was reduced, upon the election of the plaintiff to avoid a
new trial, to the sum of $7,500, for which judgment was entered.
The case was taken to the Circuit Court of Appeals of the Ninth
Circuit, where the judgment of the trial court was affirmed. The
case was then brought to this Court on a writ of error to the
judgment of the circuit court of appeals. 67 F. 881. The principal
facts of the case are thus stated in the opinion of the circuit
court of appeals:
"The collision occurred about midnight. The first train was a
regular local freight train, running on schedule time, under the
management, control, and direction of the conductor. The second
train was running under telegraphic orders, without any schedule or
timecard, known in railroad parlance as a 'wild train.' At Moscow,
a station on the railroad, the second train was standing upon the
track when the first train left that station. At Vollmer, another
station, the first train stopped to drop some cars. It was detained
about ten minutes, when it resumed its course over the mountain
grade. The second train was then in sight, standing on the track, a
short distance in the rear, with its lights plainly visible. Clyde
Spur, where the collision occurred, is about six miles from
Vollmer. It is a place on the road where there is a spur track
running out to a logging camp, where saw logs and cordwood are
loaded on the cars. There is a side track or switch, upon which
cars are left to be run out on the spur track. It is not a regular
station, and the regular freight train only stops there when there
are empty cars to be left or loaded ones to be taken away. The
first train, on
Page 167 U. S. 50
the night in question, had certain cars to be left at this
place, and stopped there for that purpose. There were three
brakemen on the train. The head brakeman, when the train was
slowing up, left his place, and started forward to open the switch.
The rear brakeman at this time, saw the second train rounding a
curve in the road, and immediately signaled it to stop, and at the
same time shouted as loud as he could. The second train was then
about one-quarter of a mile behind the first train. The first train
had barely come to a full stop when the second train, moving at a
speed of about four miles an hour, struck it by running the
cowcatcher of its engine under the rear end of the caboose on the
first train. The conductor of the first train had been lying down,
but was in his seat in the lookout of the caboose, and passed out
of the rear end just before the collision occurred. The conductor
of the second train had not been notified that the first train
would stop at Clyde Spur."
By the shock caused by the collision of the two trains the
plaintiff, who was acting as middle brakeman, was thrown from the
car on which he was standing, and received severe injuries.
In the plaintiff's complaint it was alleged
"that the said defendant the Northern Pacific Railroad Company
was guilty of carelessness and negligence in this: that the
conductor of said first train well knew that said second train was
following said first train, and failed to leave a flagman in the
rear of said first train before and at the time said first train
stopped at said Clyde Spur, to hold and stop said second train, as
he was in duty bound to do; that the place where said collision
occurred was on a mountain grade, and the said defendant the
Northern Pacific Railroad Company was guilty of carelessness and
negligence in allowing said second train to follow the first train
closely, and was guilty of carelessness and negligence in running
the second train into said first train, whereby the plaintiff was
injured as aforesaid."
The defendant, answering, denied negligence on its part, and
alleged that plaintiff's injuries were owing to and caused by his
contributory negligence and by the carelessness and negligence of
his
Page 167 U. S. 51
fellow servants. It is admitted in the brief of the plaintiff in
error that the defense of contributory negligence on the part of
the plaintiff was not made out, and the controversy resolves itself
into the question whether the plaintiff's injuries were caused by
the negligence of his fellow servants within the rule on that
subject.
Before the trial, and on the application of the attorneys for
the plaintiff, it was ordered that Thomas F. Oakes, Henry C. Paine,
and Henry C. Rouse, the receivers of the defendant company, be, and
they were thereby, made parties defendant in the action.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the court.
At the close of the evidence, the defendant moved the court to
give the following instruction:
"In this case, there in no evidence that the defendant the
Northern Pacific Railroad Company was guilty of any negligence
which caused the accident by which plaintiff was injured, or which
contributed thereto, and that, if there was any negligence, it was
that of the engineer and conductor, or of one of them, of the
second train; and, such conductor and engineer being fellow
servants of the plaintiff, there would be no liability therefor on
the part of the railroad company, and therefore you will return a
verdict for the defendants."
The refusal of the trial court to give this instruction was
assigned for error in the circuit court of appeals, and the ruling
of the latter court in affirming such refusal is complained of in
the first assignment in this Court.
This request assumes that there was no evidence of negligence on
the part of the conductor of the first train sufficient to submit
to the jury. The trial court said as to this question:
"The particular negligence charged against the railroad
company
Page 167 U. S. 52
is that the conductor of the first train -- the one upon which
the plaintiff was employed as a brakeman -- when he brought his
train to a stop at Clyde station, neglected his duty by failing to
place a flagman a sufficient distance back on the track to warn the
following train, which is called the 'second train' in this
complaint, of the danger of coming too close to that station while
the first train was stopped there."
The circuit court of appeals made no observation on this part of
the case. Both the courts discuss the case chiefly upon the
question of the liability of the company arising out of the
negligence shown in the management of the second train.
The counsel for the defendant in error contends, in his brief,
that the conductor of the first train was guilty of negligence in
not obeying the following rules of the company, put in evidence by
the plaintiff:
"Rule 133. When a train is stopped by an accident or
obstruction, the rear brakeman must immediately go back with danger
signals to stop any train moving in the same direction. At a point
fifteen telegraph poles from the rear of his train he must place
one torpedo on the rail. He must then continue to go back at least
thirty telegraph poles from the rear of his train, and place two
torpedoes on the rail, ten yards apart, when he may return to the
point where first torpedo was placed, and he must remain there
until recalled by the whistle of his engine; but if a passenger
train is due within ten minutes, he must remain until it arrives.
When he comes in, he will remove the torpedo nearest the train, but
the two torpedoes must be left on the rail as a caution signal to
any following train. If it becomes necessary to protect the front
of the train, the front brakeman must go forward, and use the same
precautions. In case of necessity, the fireman will be required to
act as flagman."
"Rule 134. When a flagman is sent out to signal any approaching
train, he must, if possible, avoid stopping on a curve, or behind
any obstruction, endeavoring to pass beyond the same, should such
exist, and reach a position where he can be clearly seen from the
approaching train for at least
Page 167 U. S. 53
one-fourth of a mile. The conductor must know that his train is
fully protected in both directions, and he will be held responsible
if any accident occurs from want of any precaution which could have
been taken."
"Rule 156. When any section of a train is unable to make the
specified time, the conductor will drop a man, with danger signals,
to warn the following train. It is the duty of the conductor of
every train, when the train stops for any cause, to immediately
protect the rear end of his train as per rule 133. No understanding
with the conductor of the following train will relieve from this
duty."
It is difficult to perceive that these rules had any
applicability to a case like the present. They seem plainly
intended to meet the exigency of a train stopped by an accident or
obstruction, or unexpectedly compelled to stop between stations. It
can scarcely be supposed that their directions are to be followed
every time a train stops at a station.
Moreover, in the present case, it appears, from the testimony of
the plaintiff's witnesses that no time was afforded for the use of
such precautions. The second train was following so closely that
the collision took place almost at the instant the first train had
come to a stop, and before the rear brakeman could do more than to
signal with his lantern, and to call out. The conductor of the
first train is not shown to have had any reason to suppose that the
second train would run into him when stopping at a station, in
utter disregard of the company's rules.
We are inclined to think that if the plaintiff's case depended
wholly on his being able to convict the conductor of the first
train of negligence, there was not sufficient evidence adduced at
this trial to have justified the trial judge in submitting the case
to the jury on that issue.
It is, however, further contended on behalf of the defendant in
error -- and upon this the stress of the case is mainly put -- that
under the facts disclosed in the record, the trial court was
justified in submitting to the jury, and the jury in finding, that
the defendant company was liable for the results of the negligence
in the management of the second train.
Page 167 U. S. 54
There is no effort to call into question the numerous decisions
of this Court whereby it has been firmly established that one who
enters the service of another takes upon himself the ordinary risks
of the negligent acts of his fellow servants in the course of the
employment. Indeed, it is conceded in both the opinion of the
circuit court of appeals,
Northern Pacific Railroad v.
Poirier, 67 F. 881, and in the brief of the defendant in error
that the conductor of the second train was a fellow servant with
the plaintiff, and that, if the collision was caused solely by his
negligence, the defendant would not be liable.
The argument to maintain the liability of the defendant company
notwithstanding this concession is based upon the evidence that
tended to show that the second train was a "wild train," running on
telegraphic orders, without any schedule or timetable, and that the
conductor of that train was not notified that the first train would
stop at Clyde Spur.
One of the plaintiff's witnesses (Allen, the rear brakeman on
the first train) testified that the second train was "running by
telegraphic orders, and had no schedule orders or timecard." This
was doubtless true, as it is true of every "wild" of extra train,
but such a fact by no means warrants the inference drawn by the
trial court and given in the charge to the jury that "the train was
running under special orders as to the time it was to make, where
it was to go, and when it should reach the different stations." It
cannot be justly inferred from the mere fact that the second train
was a "wild train" that its conductor was relieved from obeying the
laws of the company. Among those rules put in evidence by the
defendant company is:
"Rule 120. A train must not leave a station to follow a
passenger train until five minutes after the departure of such
passenger train, unless some form of block signal is used. In
mountain districts, they will not follow first class trains
descending under any circumstances until such trains are duly
reported at next telegraph station. Freight trains must not follow
each other descending mountain grades. They may ascend in sections
when handled with mountain power in the
Page 167 U. S. 55
rear. Descending passenger trains may follow freight trains as
per rule 121. Ascending passenger trains will not leave station at
foot of mountain until track is known to be clear."
"Rule 122. Freight trains following each other must keep not
less than ten minutes apart (except in closing up at stations or at
meeting or passing points), unless some form of block signal is
used."
Assuredly, more evidence must be given than the mere fact that
the second train was a "wild" train, not running on schedule time,
to justify an inference by either court or jury that the conductor
was relieved by such fact from regarding the rules of the company
regulating the running of its train. Nor does the statement of the
conductor of the second train that he had not been notified that
the first train was to stop at Clyde Spur show that he had any
right to dispense with the rules. While he did say that he had not
been notified that the first train would stop at Clyde Spur, he
does not say that he did not know of such intention. At all events,
it was clearly shown by the plaintiff's witnesses that the trains
were in immediate proximity to each other at Vollmer, the last
station before reaching Clyde Spur; that the second train followed
the first so closely that the collision occurred almost immediately
after the leading train had come to a stand, and that the rear
brakeman, who saw the second train approaching before his own train
had fully stopped, did not have time to warn his fellow brakeman,
nor himself get to the ground, before the collision took place.
These facts disclose a palpable disregard by the conductor and
engineer in charge of the second train of ordinary prudence and of
the rules which it was their duty to observe. We see no ground for
the assertion that their conduct was directed or controlled in
these particulars by orders from some agent or dispatcher of the
defendant company, "clothed with the duty of sending out the second
train, and having the control, management, and direction of its
movements." Such conjectures did not constitute evidence to be
submitted to the jury.
Accordingly, we think that the defendant was entitled to
Page 167 U. S. 56
have had the following instructions given to the jury:
"If the jury find from the evidence in this case that the
accident which caused the plaintiff's injury was caused by the
negligence of the conductor or engineer of the extra train in
following the first train too closely, or by running down the grade
at too high a rate of speed, or in not keeping the extra train in
proper control, or by any other act or neglect of the conductor or
engineer of the first train, then I instruct you that the
defendants are not liable, and that you shall return a verdict for
the defendants."
But this prayer was refused.
So, too, we think the following instruction asked for should
have been given:
"In determining the question of whether the defendant the
Northern Pacific Railroad Company was guilty of negligence in the
management of their trains, or either of them, the jury are
instructed that they may consider the rules of the company, which
have been read in evidence, and that if it appears therefrom that
the running and conduct of this second train was provided for, and
that the accident was caused by the engineer or conductor of the
second train in disregarding such rules, then your verdict must be
for the defendants."
This instruction was modified by the court adding the following
words:
"Unless it appeared that the conductor of the train, or someone
under whose orders he was acting, had authority in the special case
to deviate from the rules."
This modification was not warranted by any evidence disclosed in
this record. The only orders shown controlling the conductor and
engineer in the management of the second train were those contained
in the rules of the company. As we have already said, to instruct
the jury that they might infer, from the mere fact that the second
train was a "wild" train, not running by schedule time, that
someone in authority had dispensed with the rules in this special
case was to submit mere matter of conjecture as evidence on which
they might base a verdict.
The same error vitiates portions of the general charge, which
were duly excepted to and assigned for error, but we do not deem it
necessary to discuss those assignments in detail. They are disposed
of by the observations already made.
Page 167 U. S. 57
Upon the whole, we are of opinion that, giving to the
plaintiff's evidence its utmost effect, it did not make a case
which should have been submitted to the jury.
The judgment of the circuit court of appeals is reversed.
The judgment of the circuit court is likewise reversed, and the
cause is remanded to that court with directions to set aside the
verdict, and award a new trial.
