Clyde v. Richmond & D.R. Co.

• Decision Date: 19 June 1895
• Docket Number: 587.
• Citation: 69 F. 673
• Parties: CLYDE et al. v. RICHMOND & D. R. CO. (WYCHE, Intervener).
• Court: U.S. District Court — Northern District of Georgia

69 F. 673

CLYDE et al. v. RICHMOND & D. R. CO. (WYCHE, Intervener).

No. 587.

United States Circuit Court, N.D. Georgia.

June 19, 1895

The omission of a train dispatcher to notify a station keeper of the coming of an extra freight train, whereby the train was allowed to follow another extra freight train so closely that a collision occurred in a fog, on a down grade, which resulted in injuries to the engineer of the overtaking train was the proximate cause of the injuries.

The intervener, R. C. Wyche, filed his intervention in the above-stated equity cause, claiming damages for personal injuries received by him while in the service of the receivers. The intervention was referred to William D. Ellis Esq., as special master, and his report is as follows:

By virtue of an order of reference from the circuit court of the United States for the Northern district of Georgia, the above-named intervention was referred to the undersigned, as special master, with directions to consider the questions of law applicable thereto, and to hear the testimony and report his conclusions to the court. Due notice of said reference was given, and the case was duly and legally assigned for trial; and at the time and place assigned the intervener appeared in person and by attorney, and the defendants receivers, appeared by counsel. A full and complete report of the testimony and proceedings before the special master was made, and is herewith sent up, approved, identified, and made a part of this report.

Statement of the Case.

The intervener contended before the special master that the defendants were operating the property known as the Georgia Pacific Railway,-- a line of road extending from the city of Atlanta, in the state of Georgia, to the city of Birmingham in the state of Alabama, and that he was in their employ, as a locomotive engineer. He also contended that on the evening of the 28th of January, 1893, the defendants, by their servants and agents, sent out from Woodlawn, at or very near Birmingham, two freight trains which were not scheduled, and which were known and designated as 'First and Second Extras'; the first extra being designated also by the number of its locomotive, #558, and the second extra, or Wyche's train, was known by the number of its locomotive, #594. The two trains, he contended, were started out about the same time, and that they were run without schedule, and by telegraphic order, under the control of the train dispatcher. He says that they were run without trouble or difficulty, and that at Bremen, a station on the road, a request was made for permission to go back to Birmingham, or, in the language of railroad men, he requested to be 'turned' at Bremen, and that this request was made on account of anticipated difficulty in reaching Atlanta before 8 o'clock on the next morning which was Sunday, it being claimed to be unlawful to run freight trains in the state of Georgia after the hour of 8 o'clock a.m. Mr. Wyche contended that permission to return to Birmingham was denied, and that instructions were given to go on to Atlanta, and that while he was waiting at Bremen an accommodation train (a scheduled train) passed in at that point, and got between him and the first extra, and that he never did know until after the collision had occurred when the passenger train ran out ahead of the first extra. He contended that at Douglasville the operator gave him the white board, or signal to go ahead, and that he proceeded according to such signal, and that between Douglasville and Lithia Springs, near which last point the collision occurred, there was a heavy down grade, and that by reason of his inability to control his train he ran into the first extra, and received painful, serious, and permanent injuries. He contended that he himself was without fault, and that he was in the discharge of his duty when injured, and he contends that the defendants were negligent in several particulars: First. That they furnished him with a locomotive on which was a defective air pump, and that the defendants' governing officials at Birmingham knew of this defect when they put the locomotive in his charge. Second. That the hand brakes were defective, and failed to hold when applied, and that the defects in the hand brakes were such as could have been discovered by the defendants by the exercise of reasonable care and diligence in the line of inspection, or, in other words, by such inspection as reasonable care and diligence required them to make. Third. That the defendants, operating said road by a superintendent, and said superintendent, being represented by a train dispatcher were negligent in the management of these extra trains and of said passenger train, in this; that he was not notified at Douglasville for the time required by the rule, to wit, twenty minutes after the first extra had departed. To all contentions on the part of the intervener, defendants replied. First. That the air pump was not defective. Second. That the hand brakes were not defective. Third. That the defendants, if said hand brakes were defective, could not be held liable, because they had made all inspections which ordinary care and diligence required them to make. Fourth. That the receivers stood in the relation to the intervener of master and servant, and that, if intervener was injured in the collision, that it was through the fault and negligence of fellow servants, and that he could not recover. Fifth. That the intervener was injured by his own negligence, and, if not, that his negligence contributed to the injury, and in either event he could not recover.

Conclusions and Findings.

The testimony in the Wyche case, according to the report herewith transmitted, covers 253 pages of typewritten matter, and, in addition thereto, it was agreed that the testimony taken in the Cosby and Dodgen cases might be considered in evidence; and it will be seen that the testimony in the Dodgen case footed up 122 pages on close, typewritten matter, and in the Cosby case the testimony covers in like manner 180 pages,-- making 555 pages of testimony to be considered in this case. The special master heard the testimony delivered by the witnesses, and has read it all over since that time, carefully, twice, and has reached a conclusion after much difficulty.

The testimony shows that two extra freight trains left Woodlawn near Birmingham, on the evening of January 28, 1893, with instructions to proceed in the direction of Atlanta. These two trains were running without schedule, and under telegraphic control from the train dispatcher, whose office was in Birmingham. They ran at a safe distance, and there was no trouble or difficulty for a part of the journey. At Bremen there was a request on the part of Wyche's train to be 'turned,' or, in ordinary language, to be allowed to return to Birmingham; and this request was denied, and instructions were given to proceed to Atlanta. At Bremen the accommodation train, designated on the schedule as #55, passed Wyche's train, and thus got in between these two extras. The evidence shows that at Douglasville the first extra took the side track, and #55 passed on beyond it, and proceeded towards Atlanta. At least, the evidence fails to disclose anything further in connection with that train after it passed Douglasville, and the subsequent developments of the morning show that it had safely passed at least beyond the scene of the wreck, near Lithia Springs. The evidence shows that Wyche had no notice that the passenger train had passed the first extra at Douglasville, nor is any notice shown to him as to at what time the first extra pulled out of the siding at Douglasville and proceeded towards Lithia Springs; but the testimony preponderates in favor of the proposition that the first extra had scarcely more than left the side track at Douglasville, and proceeded on its way, before Wyche's train came up to the station. The testimony shows that the train dispatcher at Birmingham was notified of the arrival of the first extra and of #55 at Douglasville; and the evidence shows that the telegraph operator at Douglasville, who reported the arrival of the other two trains, was not notified that Wyche's train, or the second extra, was on the road at all. That was the testimony of the operator himself. The operator (peace) at Douglasville, on page 160 (record in Wyche's case), says that it was well understood that there was no operator on duty on Sunday morning after the passenger train passed, and he had no notice of these extra trains. He says that it is customary to run extra trains on Sunday, and that he would not let a train pass unless some one was on duty. On page 41 (testimony in Floyd Green case) he says he reported first extra and passenger train to train dispatcher, and, according to his testimony, there was no want of opportunity for notice to him of Wyche's train. There is conflict between the testimony of Wyche and the operator as to the character of the sign given him at Douglasville. Wyche testifies that he had received the signal of safety, and to proceed, and that he was following a passenger train. The operator testified that the boards were tied down, and such position indicated that the operator was off duty. ...