A locomotive engineer moved his train from a siding to the main
line in neglect of an order to wait for the passing of another
train. His conductor, in the caboose at the other end of his train,
had his attention called to the possible danger, but deferred
applying the air brakes while he consulted his own orders to make
sure whether the order to wait had been countermanded. Almost
immediately came a collision in which the engineer was killed.
1. The casualty was attributable to the
engineer's negligence. P. 350.
Page 286 U. S. 347
2. The inaction of the conductor, if it amounted to negligence,
was not such as to evoke the doctrine of last clear chance, since
(1) it was not reckless indifference to a duty to counteract a
peril perceived and understood, and (2) it was substantially
concurrent with the engineer's negligence. P. 286 U. S.
184 Ark, 633, 43 S.W.2d 251, reversed.
Certiorari, 285 U.S. 531, to review the affirmance of a recovery
from the railway company under the Federal Employers' Liability
Page 286 U. S. 348
MR. JUSTICE CARDOZO delivered the opinion of the Court.
The administratrix of the estate of Simpson, an employee of the
petitioner, brought this action under the Federal Employers'
Liability Act (Act of April 22, 1908,
Page 286 U. S. 349
c. 149, § 1, 35 Stat. 65, U.S.Code, Title 45, § 51) to recover
damages for his death. She had a verdict in her favor in the
circuit court of Prairie county, Arkansas, and the Supreme Court of
the state affirmed. 43 S.W.2d 251. The case is here on
Simpson was the engineer of No. 775, an extra train engaged in
interstate commerce. Before leaving Pine Bluff, Ark., he received a
written train order, No. 104, notifying him to proceed south to the
cross-over at McNeil, Ark., and there wait upon a siding until
another train, No. 18, going north, had arrived and passed. On
arriving at McNeil, Simpson took his train, consisting of 43
freight cars, upon the siding at the cross-over, but did not wait
there. He had received at McNeil another order (train order No.
132) notifying him that another train (second 18) was to meet him
farther south at Stamps. The conjecture is offered that he confused
train No. 18 with second No. 18, though there is no dispute that,
to a railroad employee, the description was entirely intelligible,
trains of the same number being designated as first, second, third,
and so forth. At all events, Simpson, instead of waiting at the
siding, moved out upon the main track. About a mile away, there was
a head-on collision between his train and No. 18, in which he and
others were killed.
The respondent admits, as she admitted on the trial, that the
engineer was negligent, and rests her right to recover upon what is
characterized as the doctrine of "the last clear chance." To bring
that doctrine into play, she relies upon these facts: at the end of
the long train of 43 freight cars was a caboose in which the
conductor and two brakemen rode. The brakemen say that, as the
train left the siding, they remembered the first order, and asked
the conductor whether any new ones contradicting it had come into
his hands. Not hearing of any, they called out
Page 286 U. S. 350
to apply the air brakes, and one of them offered to do so
himself. This the conductor forbade, and said to bring him the
written orders which were in the cupola of the caboose, so that he
might read them again. This was done at once. While the orders were
in the conductor's hands and he was reading them again, the
The facts so summarized are insufficient to relieve the engineer
from the sole responsibility for the casualty that resulted in his
death. What was said by this Court in Davis v. Kennedy,
266 U. S. 147
might have been written of this case:
"It was the personal duty of the engineer positively to
ascertain whether the other train had passed. His duty was primary,
as he had physical control of No. 4, and was managing its course.
It seems to us a perversion of the statute to allow his
representative to recover for an injury directly due to his failure
to act . . . on the ground that possibly it might have been
prevented if those in secondary relation to the movement had done
See also Unadilla Ry. Co. v. Caldine, 278 U.
; Frese v. Chicago, B. & Q, R. Co.,
263 U. S. 1
263 U. S. 3
Great Northern Ry. Co. v. Wiles, 240 U.
, 240 U. S.
We do not need to inquire whether a different conclusion would
follow if the conductor in the caboose had discovered that the
engineer had gone upon the main track through a misunderstanding of
a later order, and, discovering this, had failed after a
substantial interval of time to give warning of a peril that he
could have easily averted. Nothing of the kind appears. There is an
absence of the essential factors that wake into life the doctrine
of the last clear chance. In the first place, the conductor did not
know, any more than Simpson did, that an order had been violated.
He was distrustful of his memory, and was looking at the written
orders at the moment of the collision. Negligent he may have been,
Page 286 U. S. 351
recklessly indifferent to a duty to counteract a peril perceived
and understood. Woloszynowski v. N.Y.C. R. Co.,
206, 172 N.E. 471; Inland & Seaboard Coasting Co. v.
Tolson, 139 U. S. 551
139 U. S. 558
In the second place, the negligence of the engineer and the
negligence of the conductor were substantially concurrent. The
negligence of the engineer was a continuing one (St. Louis
& San Antonio Ry. Co. v. Schumacher, 152 U. S.
, 152 U. S. 81
he was under a duty from the moment that he went out on the main
track to return to a place of safety. The negligence of the
conductor in failing to give warning was not separated by any
considerable interval from the consequences to be averted, nor is
there any satisfactory proof that warning, if given, would have
been effective to avert them. The transaction, from start to
finish, must have been a matter of seconds only. In the brief for
the respondent, nice calculations are submitted in an attempt to
prove that, if the conductor had applied the brakes at once, his
train could have been stopped at a point that would have separated
it by a space of approximately half a mile from train No. 18
rushing on from the south, and that, if all this had happened, the
engineer of No. 18 might have noticed the stationary train in time
to stop his own and thus prevent collision. Calculations so nice
are unavailing to prove anything except the unity of the whole
transaction. The several acts of negligence were too closely welded
together in time as well as in quality to be viewed as independent.
Kansas City Southern Ry. v. Ellzey, 275 U.
, 275 U. S.
The judgment should be reversed, and the cause remanded for
further proceedings not inconsistent with this opinion.