Baltimore & O.R. Co. v. Andrews

• Decision Date: 06 June 1892
• Citation: 1 C.C.A. 636,50 F. 728,9 Ohio F.Dec. 553,17 L.R.A. 190,7 Ohio F.Dec. 231
• Parties: BALTIMORE & O.R. CO. v. ANDREWS.
• Court: U.S. Court of Appeals — Sixth Circuit

50 F. 728

17 L.R.A. 190, 7 Ohio F.Dec. 231, 9 Ohio F.Dec. 553, 1 C.C.A. [PG636

BALTIMORE & O.R. CO. v. ANDREWS.

United States Court of Appeals, Sixth Circuit.

June 6, 1892

J. H Collins, for plaintiff.

W. W Skiles, for defendant.

Before JACKSON, Circuit Judge, and SAGE and SWAN, District Judges.

SAGE District Judge.

The action below was brought to recover damages for the death of Charles Reynolds, alleged to have resulted from the negligence of the defendant below. On the 14th day of February, A.D. 1890, the deceased was a brakeman on west-bound freight train No. 37, on the Chicago division of the railway of the defendant below, and while in the discharge of his duty as such was killed in a collision with east-bound freight train No. 88, near the town of Bairdstown a station on the line of said road. It appears from the bill of exceptions that upon the trial testimony was introduced on the part of the plaintiff, and also of the defendant, 'proving' that train No. 88, on the date named, left Garrett, Ind., with Theodore Cruder acting as conductor, and J. M. Smith as engineer. It 'was run under the exclusive orders, direction, and supervision of the train dispatcher and the superintendent of the Chicago division of the defendant's railroad. ' The train dispatcher gave instructions by telegraph to the engineer and conductor as to the movements of the train, directing when and where it should stop, where it should pass other trains, and all other matters connected with its running and management. While it was at Deshler, a station on the line of said road, a telegram was sent by the train dispatcher, and delivered to the conductor and engineer, ordering them to meet and pass train No. 37 at Bairdstown, but both the conductor and engineer made the mistake of reading 'Bloomdale' instead of 'Bairdstown,' Bloomdale being a station east of Bairdstown, and, so reading the order, ran the train past Bairdstown without stopping, the conductor of train No. 37 having an order from the train dispatcher to meet No. 88 at Bairdstown, and moving his train to that station. The result was that the trains collided, and Reynolds was killed. But testimony having been offered, on behalf of the plaintiff below, tending to maintain an allegation of the petition that the conductor of train No. 88 was incompetent, and the engineer not only incompetent, but of reckless habits, the court suggested to counsel that, as negligence of both the conductor and engineer, in not correctly reading their orders, was conceded, and as, in the judgment of the court, the testimony upon the other issue was not sufficient to support a finding in favor of the plaintiff, the case be allowed to go to the jury upon the sole question of the negligence of the conductor and engineer in not properly reading their orders, for the reason that, in the opinion of the court, that negligence made the defendant liable in law, and it was not therefore material or important that the jury should determine any other question. This suggestion was accepted by counsel, and the court then proceeded to charge the jury. The portion of the charge upon which the questions to be here decided arise is as follows:

'There is no fact to be submitted to you in this case. The defendant, by its counsel, concedes that the conductor did not properly read his instructions, and by such negligence caused the accident complained of. The conductor in this instance, the court instructs you, as a matter of law, represented the defendant. The conductor's negligence, therefore, was the negligence of the defendant, and, the plaintiff having been without fault, the defendant is liable for the injury sustained. It is therefore solely a question of damages.'

The jury returned a verdict for the plaintiff on the 24th of April, 1891, upon which, a motion for new trial having been overruled, a judgment for $4,000 was, on the 29th day of July, 1891, rendered against the defendant, and the cause was then brought to this court by proceedings in error. The defendant in error objects to the jurisdiction, that the verdict having been found before the 1st of July, 1891, for less than $5,000, the case could not be brought here by proceedings in error. It was held in Railway Co. v. Bennett, 49 F. 598, (decided by this court October 6, 1891, and reported in No. 6 of the advance parts of the United States Courts of Appeals Reports,) that while the then existing jurisdiction of the circuit courts and of the supreme court was preserved up to the 1st of July, 1891, as to all appeals pending or taken before that date, there was also a right of appeal to the circuit courts of appeal from the time the act was passed; and, consequently, that the writ of error in that case, which was taken on the 24th day of June, 1891, was properly taken, and that this court had jurisdiction of the case. The court cited, as sustaining this ruling, in re Claasen, 140 U.S. 200, 11 S.Ct. 735. The objection to the jurisdiction is overruled.

There is but a single exception to the charge, and that is a general one. The only question to be considered is whether, upon all the evidence, the verdict and judgment in favor of the plaintiff below should be sustained. More precisely stated, it is whether the plaintiff in error was liable to the defendant in error for the negligence of the conductor of train 88, which it is conceded caused the collision and the death of Reynolds. If so, the judgment must stand; if not, is must be reversed. The facts are not in dispute. The suggestion made by the trial judge that the allegations that the conductor and engineer of No 88 were incompetent, and the engineer reckless, were not sustained by the evidence, was accepted by counsel for the respective parties. The jury was instructed that the conductor represented the railroad company, that his negligence was the negligence of the company, and that, Reynolds having been without fault, the company was liable for damages resulting from his death.

Counsel for defendant in error, in support of this instruction, cite numerous cases to which it may be as well at the outset to refer. Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct 184, is clearly distinguishable from this case. There the injury to the plaintiff, a locomotive engineer, was received in a collision caused by the negligence of the conductor of the train, to whose orders he was subject. The court held that the railroad company was liable, recognizing a distinction (between servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation clothed with the control and management of the distinct department, in which their duty is that of direction and superintendence,' and that 'the conductor of a railway train, who commands its movements, directs when it shall stop, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and therefore that for injuries resulting from his negligent acts the company is responsible. ' It is insisted for the plaintiff in error...