Felton v. Harbeson

• Decision Date: 07 November 1900
• Docket Number: 723.
• Citation: 104 F. 737
• Parties: FELTON v. HARBESON.
• Court: U.S. Court of Appeals — Sixth Circuit

104 F. 737

FELTON v. HARBESON.

No. 723.

United States Court of Appeals, Sixth Circuit.

November 7, 1900

A train dispatcher sent an order for the passing of two trains on a single-track railroad at a certain station, to be delivered to one of the trains at such station, in direct violation of a rule of the company which required such orders to be delivered to all trains at least one station from the point of meeting. A second rule required all trains, on approaching signal stations, to be under such control that they could be stopped before passing the signal board, if proper signal therefor was given. The regular train, which had not received the orders for meeting, could not be stopped by the engineer after receiving the signal, until it had passed beyond the switch through which the opposing train was to enter, and a collision resulted, in which plaintiff's intestate, a fireman, was killed. Held, that the first rule must be regarded as prescribing an additional precaution deemed necessary by the company to insure greater vigilance and care on the part of engineers in approaching meeting stations, and that its violation by the train dispatcher could not be said as matter of law, not to have been a proximate cause of the injury, even conceding that the collision would not have occurred but for the concurrent negligence of the engineer in failing to have his train under proper control, since such negligence may have been superinduced by his ignorance that he was to meet the other train.

C. B Simrall, for plaintiff in error.

Alfred Mack, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge.

This was an action in tort for the negligent killing of Frank J Schlosser, the intestate of the defendant in error, while a fireman in the service of the plaintiff in error. There was a verdict and judgment for the defendant in error. The intestate was killed by a collision at night between two freight trains while serving as fireman upon one of them. The colliding trains were respectively known as Nos. 36 and 37. The collision occurred at Blanchett, Ky., a station on the line of railroad operated by plaintiff in error. Train No. 36 was a north-bound freight, and entitled to the right of track. Train No. 37 was a south-bound freight, and was a 'double-header'; that is, it was pulled by two engines, Schlosser being the fireman on the second engine. The trains were opposing trains, and were being moved under telegraphic orders from the train dispatcher at Lexington, Ky., who purposed that they should meet and pass at Blanchett. The contention of the plaintiff below was that the train dispatcher was guilty of negligence in sending a meeting order for those opposing trains which was not to be communicated to one of them (No. 36) until it should reach the meeting point, and that the collision occurred before No. 36 had received the order, and as a consequence of its failure to receive a meeting order before reaching the place of meeting. The insistence was that this method of giving a meeting orders was in violation of rule 521, prescribed by the railroad company for the government of its train dispatcher and the movement of its trains, and that the rule thus prescribed was a reasonable rule, and its violation by the dispatcher negligence, for which the railway company was liable. Rule 521 was in these words:

'Meeting orders must not, under any circumstances, be sent for delivery to trains at the meeting point. There should always be at least one station between those at which opposing trains receive meeting orders.'

The dispatcher sent a meeting order in duplicate for trains Nos. 36 and 37, which was in these words:

'No. 36 will get this order at meeting point, and meet No. 37 at Blanchett. No. 37 and No. 32 will meet at Hinton.'

This order was sent to, and received by, train No. 37 at Williamstown, a station about eight miles north of Blanchett. The same order was sent to No. 36 at Blanchett, the meeting point, but was not received until after the collision. The obvious purpose of this rule was to give to meeting trains their meeting orders at least one station before either should reach the meeting point. Such a rule was calculated to insure a mutual understanding between trains, and enable each to govern itself accordingly. The rule required that train No. 36 should receive its meeting order at least one station before reaching the meeting point at Blanchett. If it had done so, it would have known that it would meet No. 37 at that station, and come under urgent obligation to avoid passing that station so as to block the entrance of No. 37 into the switch just north of the station which it was the duty of No. 37 to take.

District Judge Barr construed the rule as we have interpreted it. There was no error in this. The jury was instructed that the question as to whether a violation of the rule, so interpreted, was negligence, was for the jury; the rule being only prima facie evidence of what would be due care.

They were also instructed that the train dispatcher was a vice principal, and not a fellow servant, and that the plaintiff in error was liable for the proximate consequences of the negligence of the dispatcher. There was no error in this. Railroad Co. v. Camp, 13 C.C.A. 233, 65 F. 952, 31 U.S.App. 213.

At the close of all the evidence the plaintiff in error asked for a peremptory instruction, which was denied. It is now urged that there was no evidence upon which the jury could reasonably find that the negligence of the plaintiff in error in the manner of giving the orders for these trains to meet at Blanchett was the proximate cause of the collision, and that the court erred in not so instructing the jury. The evidence did establish that a red signal light was showing as No. 36 approached Blanchett which could be seen by train No 36 for a distance of about 18 telegraph poles. If this was not changed to white after the train whistled for the station, it signified, under the well-established rules of the company, that the train must be stopped before any part of it should pass the signal board, and that the conductor and engineer should then proceed to the telegraph office for orders. The rules required that signal stations should be approached with the train under such control as that it might be brought to a full stop if the red light was not changed to a white one after the train had called for the board. The evidence also established that the engineer saw this red signal light as soon as it could be seen, and that he at once whistled for the station. The red light not being at once changed to white, so as...