The duty of the master to furnish safe places for the employees
to work in and safe appliances to work with is a continuing one to
be exercised wherever circumstances require it.
While the duty of the master -- in this case a railroad company
-- may be, and frequently is, discharged by one exercise, it may
recur at any moment in keeping trains in safe relation. A train
dispatcher is not relieved, nor does he relieve the company, by the
promulgation of an order; he must at all times know and guard
against possible changes, and, under the circumstances of this
case,
held that a collision causing injuries to an
engineer was the result of the dispatcher's negligence in failing
to take into account and do what a prudent man would have taken
into account and done. .
In this case, the dispatcher was the representative of the
company to promulgate orders for the running of trains, and not a
fellow servant of the engineer.
Action brought in the Circuit Court of the United States for the
Ninth Circuit, Southern District of California, by defendant in
error, for damages for injuries received by him in a head-on
collision of two trains, on one of which he was an engineer. The
answer alleged negligence upon the part of defendant in error by
disobeying the orders, rules, and regulations of the company, and
also alleged that the collision was
Page 202 U. S. 439
caused by the negligence of a fellow servant. The action was
tried without a jury, and the circuit court found for defendant in
error in the amount of $9,000, and entered judgment against the
company for that sum. The judgment was affirmed by the circuit
court of appeals. 136 F. 66. The company, being a federal
corporation, then sued out this writ of error.
The colliding trains were regular passenger trains, and are
denominated in the testimony as train No. 3 and train No. 4, the
former being westbound and the latter eastbound. Defendant in error
was the engineer on No. 4, or rather one of the engineers, the
train being hauled by two engines. He was the engineer of the
second engine. Both trains were run on regular schedule or time
cards when on time or slightly delayed, No. 4 having the right of
track. On the morning of the collision, November 20, 1901, train
No. 3 was unusually delayed, and special orders became necessary
for the operation of the trains on the Arizona Division. The first
order was issued before train No. 4 had left Needles. The order was
as follows: "No. 3 eng. 482 has right of track over No. 4 eng. 444
and 452 to Needles, but will run 1 hour 50 minutes late Kingman to
Needles." The copy of the order was delivered to train No. 4 before
4:22 A.M., before its departure from Needles, and to No. 3 upon its
arrival at Kingman at 4:21 or 4:22 A.M. Train No. 4 ran east to
Mellen, a distance of 11.9 miles, where it stopped upon signal. In
the meantime the second order (No. 23) was issued by the train
dispatcher, train No. 3 having been more delayed in arriving at
Kingman than had been expected. This order was delivered to train
No. 4 at Mellen. It read as follows: "No. 3 eng. 482 will run two
(2) hours late Kingman to Needles." A copy of the order was
delivered to No. 3 at Kingman. The effect of these orders and the
general rules of the company was that No. 3 was to run according to
the time card, except that it was to run two hours late and was to
have the right of track over No. 4, the latter to look out for No.
3, and run with reference
Page 202 U. S. 440
to its movement as provided for by the special orders in
connection with the timetable. The orders and the timetable would
have made Franconia the proper place of passing of the trains, No.
3 being due to arrive there at 5:17, No. 4 at 5:06, or eleven
minutes ahead of No. 3. Train No. 3 should have left Kingman at
4:25. It left at 4:31, six minutes late. It passed Yucca, however
at 4:55 (this is disputed, but upon what evidence we shall
presently consider); it should not have passed until 4:57, and it
passed Franconia six minutes ahead of time. The operator at Yucca
(the only night telegraph office between Kingman and Franconia) at
4:58 or 59 reported to the train dispatcher that No. 3 had passed
at 4:55.
No. 4 left Mellen, which was the only night office between
Needles and Franconia, between 4:45 and 4:47, and ran 6.8 miles to
Powell, arriving there at 5 o'clock. A stop was made of three or
four minutes for the purpose of adjusting the flow of oil in the
leading locomotive, and then proceeded towards Franconia. In the
meantime No. 3 had arrived at Franconia six minutes ahead of the
schedule time under the special order for leaving that station. On
approaching the station the engineer signaled an inquiry for orders
and received by semaphore signal from the operator the reply: "No
orders from the train dispatcher." He did not stop at Franconia,
and, while the train was going at a speed of from 60 to 70 miles an
hour, about 1 1/4 miles from Franconia, it collided with No. 4,
which was running from 40 to 50 miles an hour. Both trains were
wrecked, the engineer of the leading locomotive of No. 4 and
several others were killed, and the defendant in error sustained
serious injuries. The operator at Franconia had no orders that
morning for either No. 3 or No. 4. But for the collision, No. 4
would have reached and have been placed on the siding at Franconia,
notwithstanding the delay at Powell, two or three minutes before
No. 3 was due at Franconia. Plaintiff in error's rule No. 385 only
requires the train not having the right of
Page 202 U. S. 441
track to take a siding and be clear of the main track before the
leaving time of the opposing train. Other facts are stated in the
opinion.
MR. JUSTICE McKENNA, after stating the case as above, delivered
the opinion of the Court.
The case here is in narrow compass both as to the facts and the
law. It is apparent that none of the operators of train No. 4 was
guilty of negligence. The second special order indicated Franconia
as the meeting point of the trains and that train No. 4 should
reach there before 5:17, the leaving time of train No. 3. This it
could have accomplished notwithstanding the delay at Powell. It is
equally apparent that train No. 3 was ahead of time, and we may
consider that its engineer was culpable. The question is yet
presented whether the company is not charged with liability. In
this question there are involved two elements -- one of law and one
of fact. It is not denied that the train dispatcher represented the
company in the promulgation of the special orders. It is, however,
asserted that this representation ceased by the promulgation of the
orders, and that he was not required to repeat them or promulgate
new ones. "There is no ground," it is insisted, "either upon reason
or authority, for holding that a principal is bound to stand over
his servants to enforce proper and sufficient orders once given to
them." There is an instant answer to the contention. Instead of
according with principle and authority, it is opposed to both. It
contradicts a concession elsewhere made in the argument, that it is
the
Page 202 U. S. 442
duty of a railroad company to promulgate adequate rules and
regulations for the safety of employees engaged in the dangerous
duty of operating trains, and at times telegraph orders for the
movements of trains. It is the duty of a master to furnish safe
places to work in and safe instruments to work with, and of this
there need be no discussion. The duty is a continuing one, and must
be exercised whenever circumstances demand it. It may indeed often
be discharged by one exercise. It may recur at any moment in
keeping moving and opposing trains in safe relation. The rules of
the company recognize this. They require telegraph operators to
report the time of departure and passing of trains. This is
absolutely necessary for supervision. The business is hazardous.
Trains may be rushing towards each other upon a single track. All
may go well. The observance of time alone may be sufficient for
safety. But something may occur to one of the trains, with or
without fault of anybody, which may endanger the other. May a train
dispatcher know it and not guard against it? A negative answer
would be revolting.
There can be no doubt of the duty of the train dispatcher in
such case. His duty is clear if the circumstances call for action.
Did the circumstances in the case at bar call for action? In
answering this, it will do no good to discuss cases. The principles
of law are clear. A master must furnish a safe place for his
servant to work in, and the risk the servant assumes of the
negligence of a fellow servant does not exempt from that duty. Or,
to put the matter more guardedly, there is no circumstance in this
case which exempted from that duty. The special orders were an
assurance of the company, through its train dispatcher, to train
No. 4 that it could run with safety between Mellen and Franconia if
it arrived at the latter station before 5:17. If anything occurred
to change that condition which came to the knowledge of the
company, train No. 4 was entitled to know it, and we are brought to
the simple question did anything occur? It is admitted all around
that train No. 3 did not comply with orders, and arrived
Page 202 U. S. 443
and departed from Franconia ahead of time. It is disputed
whether it arrived at or departed from Yucca ahead of time. Both of
the lower courts found that it did, and we cannot say that the
evidence does not sustain the finding. The telegraph operator at
Yucca notified the train dispatcher that the train passed two
minutes ahead of time -- passed at 4:55; its time was 4:57, and we
know that it passed Franconia six minutes ahead of time -- a
circumstance which tends to show that the operator at Yucca was
right. That there was an error in the operator's clock was an
afterthought of the train dispatcher. He received and recorded on
the "train sheet" the time (4:55) which was given him. He testified
(his deposition was taken by defendant in error) that he received
the report of the operator at 4:58, and that he made the entry at
4:55, "just before the accident, and placed "7" over the second "5"
just after the accident." He was asked no further explanation by
either of the parties. The operator (who was also called by the
defendant in error) testified that, shortly after he had reported
the passing of train No. 3, he was called up by the train
dispatcher, who asked: "What time have you got?" The operator gave
the time 4:51 or 2, and the dispatcher replied: "Your clock is two
minutes slow," or such a matter. And this testimony has
corroboration in the testimony of the operator at Kingman, who
heard the conversation. It appears, therefore, that the attention
of the train dispatcher was challenged to the fact and felt the
importance of the fact that train No. 3 was running contrary to
orders. What should he have done considering that two trains were
rushing toward each other upon a single track, the safety of both
dependent upon the exact observance of time by both? Minutes were
important, and how important the testimony exhibits everywhere. The
clocks of the telegraph operators are adjusted by standard, and not
allowed to vary three seconds. The practice and safety of special
orders are recognized as dependent upon the exact observance of
time. Their superiority to meeting points for trains is attempted
to be
Page 202 U. S. 444
demonstrated by witness by saying that "it is one of the objects
of good railroading to cover the greatest distance in the least
time, and to keep in motion the largest number of trains on a
division." The object was beset with dangers and demanded a
proportionate care. It allowed little margin for inevitable delays.
There was no place in it for any negligence. A train was in fault
if it was behind time. It was the height of culpability to be ahead
of time. A close connection at "clearance" points was expected. It
was testified that trains of the first class, which No. 3 and No. 4
were, "can clear each other to a second." If the trains are of
different classes, the inferior must clear by at least five
minutes.
Such was the system, and what it demanded the train dispatcher
must have known. In such a system, minutes -- and even seconds --
are important, and it was the duty of the train dispatcher to
regard them. He knew, to use the testimony of the company's chief
dispatcher, that it was the duty of train No. 3 "not to run less
than two hours late with reference to her schedule, as prescribed
in the regular time-table." She was not allowed, was his emphatic
declaration, "to make up one second of that two hours as long as
that order was in effect." She (to keep up the personification of
the witness) was running two minutes ahead of time. This might of
itself have caused a collision. The other train was to be
considered, and that minutes were important should not have been
out of the train dispatcher's mind an instant. He knew that No. 3
had the right of way, with no obligation to No. 4 but to observe
time. He knew that No. 4 was "to get into the clear and out of No.
3's way," and had no other guide but the time prescribed.
These comments do not lose their force or application by reason
of the fact that, under the special orders, the trains had an
allowance of eleven minutes at Franconia. This allowance was made
upon the basis of a strict observance of time, the perfect working
of machinery, and exact accordance of clocks. But such perfection,
in the nature of things, was liable to disturbance,
Page 202 U. S. 445
and, when disturbance was observed, should have been provided
against, and immediately provided against. It was no time to take
chances or debate probabilities. It is to be remembered that at all
stations there were not night telegraph offices. Yucca was the only
one between Yucca and Franconia, and between those stations the
train was lost to observation and control. The train dispatcher
indeed exhibited his concern. All of the fatal significance of
train No. 3's running ahead of time came to his mind. His mistake
was to account for it by an error in the telegraph operator's clock
(giving to him this excuse against the finding of the lower
courts), although he knew that the clock must have been adjusted
that day under the rules with the standard time. If we were forced
to find the fact, we should find it against him; but it is enough
to say that there was brought to him, considering his position and
the responsibilities upon him, a demand for a care which he omitted
to observe. If he had been as considerate as he ought to have been,
he would have stopped No. 3 at Franconia. And for this conclusion
we need not the proof afforded by the collision. The collision,
however, and the excuses offered for it, make the conclusion
irresistible. Plaintiff in error excuses the train dispatcher by a
defect in the clock of the telegraph operator at Yucca. The
engineer of No. 3 excuses himself by virtually condemning the
clocks of the company by which he had tested his watch. He is sure
if No. 4 had been running on time he would have met her at
Haviland, the station between Yucca and Franconia. A system which
permits such confusion and the endangering of human lives is wrong
or wrongly administered. We need go no farther in the present case
than to say that it was wrongly administered. The train dispatcher
failed to take into account and do what a prudent man would have
taken into account and have done.
Judgment affirmed.
MR. JUSTICE BREWER dissents.
