Atchison, T. & S.F. Ry. Co. v. Hamble

• Decision Date: 09 March 1910
• Docket Number: 1,730.
• Parties: ATCHISON, T. & S.F. RY. CO. v. HAMBLE.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F. 644

ATCHISON, T. & S.F. RY. CO. v. HAMBLE.

No. 1,730.

United States Court of Appeals, Ninth Circuit.

March 9, 1910

This was an action brought by the defendant in error, hereafter designated as the 'plaintiff,' to recover damages from the plaintiff in error, hereafter designated as 'defendant,' for personal injuries resulting from the defendant's alleged negligence.

That part of the Southern Pacific line of railway in Southern California between Mojave and Bakersfield, a distance of about 69 miles, although a single track, is occupied jointly by the Southern Pacific Company and the defendant, the Atchison, Topeka & Sante Fe Company; the latter having a license to run its trains over this section of the Southern Pacific track. Intermediate between Mojave and Bakersfield are the stations of Tehachapi and Bealville. The track from Tehachapi near the summit of the Tehachapi Mountains to Bealville is downgrade; the average descent being about 120 feet to the mile. The line of road between these two points passes over a number of curves and through a series of 14 tunnels. To guard against collisions, the road is divided into sections of varying lengths, called 'blocks,' and these blocks are equipped with an effective system of automatic block signals. These signals are described by the attorney for the defendant as follows: 'At the initial end, or entrance, of each block, and at the right side-- the engineer's side--is a block signal consisting of a post having near its top an arm, or semaphore, pivoted near one of its ends on the post, so that it can be swung freely through an arc of 90 degrees in a plane at right angles with the block. The long end of the arm is painted red on the side visible to a train approaching the block to enter. The short end of the arm is provided with a red, a green, and sometimes a yellow round disc of glass, arranged in the arc of a circle, so that, as the arm is moved to given angles with the post, these colored glasses will severally stand opposite a light fixed near the head of the post, and will show a red green, or yellow light to the train approaching the block entrance. Adjacent to the post is an electromagnetic mechanism which swings the semaphore to the desired angle and is in an electric current formed by the rails in the block and the wheels of a locomotive or car in contact with both rails. When there is no train on the block, the semaphore is at an angle of 45 degrees with the post, and the green light shows. When the forward wheels of the pony truck of a locomotive pass onto the ends of the rails at the block entrance, the semaphore swings up and stands at right angles with the post, its long arm extending away from the track that is to the right as the train is going and the red glass in the short arm confronts the lamp. The semaphore remains in this position until the last two wheels of the last car in the train pass off of the end of the rails at the block terminus, when it drops again to an angle of about 45 degrees and shows the green light. By day the red arm at right angles, by night the red light, is a signal to enter the block, because it is clear.'

The section of road with which we are immediately concerned in this case is a single block having a length of about a mile and a half extending above Bealville. The track in this block passes through four tunnels and over about the same number of curves. The lower tunnel is numbered 3, and is located above Bealville. The next above is numbered 4, the next above that is numbered 5, and the upper tunnel is numbered 6. At the upper end of this block at a point 1,400 feet above the upper end of tunnel No. 6 stands the upper block signal for this block, which gives information to a train coming down the mountain of the condition of the track throughout the entire block below. The lower block signal is below tunnel No. 3 in Bealville. There is also a cautionary signal about 200 or 250 feet above tunnel No. 4. This cautionary signal gives information to a train coming through the block as to the condition of the track approaching the station at Bealville, about 1,500 feet below the lower end of tunnel No. 4.

The movement of trains over this section is under the direction of the division superintendent of the Southern Pacific Company at Bakersfield, who gives his orders through the train dispatcher at that place. Practically the orders of the division superintendent are in fact issued by the train dispatcher.

The plaintiff on February 2, 1903, was employed as a conductor on an extra freight train No. 2,602, belonging to the Southern Pacific Company, consisting of 35 empty freight cars with an engine in front and a caboose, or way car, at the rear. This train left Tehachapi about 2 o'clock on the morning of February 2, 1903, and arrived at a point near the switch at Bealville about 6:05 a.m. The train was stopped and held at this point because the track was blocked by another train in front of Bealville. The train had passed through tunnel No. 5 and partly through tunnel No. 4. The rear end of the train, including the caboose, stood in the westerly end of tunnel No. 4. This tunnel is 257 feet long. The train stood about 90 feet in the westerly end of the tunnel, leaving about 167 feet of the easterly end of the tunnel clear. The distance between tunnels 5 and 4 is about 2,564 feet. The track between these two points is plainly visible from the westerly end of tunnel No. 5, except at a point from 100 to 150 feet from the westerly end of tunnel No. 5, where the track passes through a cut or curve for a distance of about 200 or 300 feet. The evidence that the block signal system was in full operation on that morning is uncontradicted. When plaintiff's train came to a standstill in and below tunnel No. 4, the rear brakeman on that train went back up the track between tunnel No. 4 and tunnel No. 5 and struck a lighted fusee on a tie and placed two torpedoes on the rail to protect the train from collision from an overtaking train. This brakeman testified that when he saw the fusee was burning out he went back to the caboose and got another fusee and two additional torpedoes. Returning up the track, he placed the second fusee and the two additional torpedoes at intervals along the track. He then heard a whistle which he thought came from the engine of his train calling him in. Upon going back he found his train still standing in the tunnel. Returning up the track he saw a headlight coming out of tunnel No. 5. This headlight was the headlight of the following train, consisting of three engines and caboose, which had left Tehachapi shortly after plaintiff's train. This train, when seen by the brakeman, had passed the block signal above tunnel No. 6 showing red, and warning this train that there was another train in the block. It passed down the track between tunnels Nos. 5 and 4, exploding the torpedoes and passing over the burning fusee set by the brakeman. It passed the cautionary signal above tunnel No. 4 showing yellow, warning the train to come to a stop, and proceeding onward entered tunnel No. 4, where it smashed into the rear of plaintiff's train, driving that train with 10 brakes set a car length ahead, smashing a caboose, and driving an oil car up into the roof of the tunnel. The plaintiff was in the caboose at the time of the collision and was carried forward in the wreckage and rendered unconscious. When he regained consciousness, he found himself on the top of a door on a level with the mouth of the tunnel and in the midst of wreckage. He crawled out on an oil car and from there to the ground. His left leg was so badly crushed that it became necessary to amputate it below the knee. From that and other injuries received at the time he was in the hospital for a greater part of two years.

At the summit that morning two engines and a caboose belonging to the defendant were coupled together as a train. The engines were numbered 781 and 784; No. 781 being in the lead. The train dispatcher issued an order that these two engines and caboose should go down the road as a train to Kern Junction near Bakersfield as extra No. 781. Under the rules of practice of the road relating to the movement of trains, the leading engine holds the orders of the train dispatcher, and the train, when an extra, takes its number from the number of the engine. After this train had been made up in the order stated, with a conductor in the employ of the defendant in charge, the train dispatcher issued a supplemental order, which was delivered to the conductor and to the engineer in charge of engine No. 781, to couple to engine No. 2245, belonging to the Southern Pacific Company, and to take it to Kern Junction. To avoid the delay in switching, this last engine was placed at the head of the train. The number of the train was not, however, changed, but retained its number as extra No. 781. This train as thus made up had an engineer in the lead in the employ of the Southern Pacific Company, two engineers in the second and third engines, respectively, and a conductor and brakeman in the caboose in the employ of the defendant. Precisely when this train left the station at Tehachapi near the summit is not clear; but, as there is no controversy on that point, it is sufficient to say that it followed plaintiff's train down the mountain, and it will be assumed that it left Tehachapi after a proper interval. It was this following train that overtook and smashed into plaintiff's train in tunnel No. 4 near Bealville, where plaintiff received his injuries.

Thereafter plaintiff brought this action, alleging that by reason of the negligence of the defendant, its servants, agents, and employes, the engineers of said two locomotive engines and conductor in charge of said...