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

• Decision Date: 05 October 1908
• Docket Number: 1,543.
• Parties: HAMBLE v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 410

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

No. 1,543.

United States Court of Appeals, Ninth Circuit.

October 5, 1908

The plaintiff in error brought an action in the court below to recover damages for personal injuries suffered by him as the result of a rear-end collision between two railway trains. The complaint alleged that the accident was occasioned by the negligence of the defendant in error in operating one of the trains. The answer denied negligence, and alleged contributory negligence on the part of the plaintiff in error, and for a further defense alleged in substance that the railway upon which the accident occurred belonged to the Southern Pacific Railroad Company, and that the defendant in error was using the same by virtue of a license from the Southern Pacific Company, authorizing it to run and operate its engines, cars, and trains thereon, and that the operation and movement of all engines, cars, and trains of the defendant in error thereon was to be subject to the immediate direction, government, and superintendence of said Southern Pacific Company, and that the train so alleged to have been negligently operated by the defendant in error was, at the time of the accident, under the sole direction, control, and government of the Southern Pacific Company and its agents. The evidence showed that the plaintiff in error was a conductor in the employment of the Southern Pacific Company and had charge of its freight train No. 2,602, bound from Los Angeles to Bakersfield. The accident occurred at about 6:25 in the morning. The plaintiff in error had crossed the summit of the Tehachapi Mountains, and running in a westerly direction on a downhill grade, had passed through tunnel No 5, and about 20 minutes before the accident had reached a point where the rear end of his train, including the caboose stood in the westerly end of tunnel No. 4, where his train stood until the time of the accident, for the reason that the track ahead of him was obstructed by other trains so that he could not proceed. The distance between the two tunnels is about 2,750 feet. The track from No. 5 to No. 4 runs on a downgrade of about 120 feet to the mile, and the whole course of it is plainly visible from the westerly end of No. 5. The track was equipped with an efficient system of automatic block signals, which were in working order. The plaintiff in error and his train crew adopted the usual methods and devices required by the rules in such cases to prevent a rear-end collision. Immediately on coming to a standstill, a brakeman went back up the road and strapped to the rails at different intervals between the tunnels four torpedoes, and ignited two fusees, which were stuck into the ties at points where they were most likely to be seen by an overtaking train, and one of the fusees was still burning after the accident. The overtaking train consisted of two heavy engines and a caboose belonging to the defendant in error and one light engine at the front end of the train belonging to the Southern Pacific Company. It was in charge of a conductor of the defendant in error, but the engineer of the Southern Pacific engine was in the employment of the Southern Pacific Company. The plaintiff in error knew that this train was following him. His orders required him to look out for a train ahead and a train behind. He received these orders at Summit Station, from the Southern Pacific train dispatcher. There is no evidence that either train disregarded in any way the instructions of the train dispatcher. The evidence shows that the overtaking train passed the danger signal showing red at the easterly limit of the block on which the plaintiff in error's train was standing. This signal was a mile up the grade and above the easterly end of tunnel No. 6. After passing this signal, the defendant in error's train came out of the west end of tunnel No. 5 at a speed of from 25 to 30 miles an hour, came down the grade at that speed, exploding the four torpedoes, passing over the burning fusees, passing the signaling brakeman Smith, and the yellow caution light near the easterly mouth of tunnel No. 4, thence into collision with the rear end of the plaintiff in error's train. At the close of the evidence for the plaintiff in error, the defendant in error moved for a nonsuit, which was granted on the ground that the overtaking train, from the time it left Summit Station, was under the control and direction of the Southern Pacific Company, and not of the defendant in error. That ruling is assigned as error.

Harris & Harris and F. W. Thompson (Newman Jones, of counsel), for plaintiff in error.

E. W. Camp, A. H. Van Cott, and U. T. Clotfelter, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The record shows that the defendant in error was in the joint use with the Southern Pacific Railroad Company of a portion of the latter's track under a license, and that its trains were under the control and direction of the Southern Pacific Company. The trains that came into collision had started from Summit Station under the direction of the Southern Pacific Company's train dispatcher at Bakersfield. It is to be admitted that a railroad company operating its trains over the road of another under a license to use the same, and subject to the direction of the latter and the rules and regulations of its road, is not answerable for injury occurring to third persons through the negligent acts of the train dispatcher or other officers in whose charge is the management and the control of the movement of trains. But when the injury occurs to a third person through the negligent act of the employes of the licensed company, not resulting from any negligent order as to the movement of trains, but wholly through the negligence of the conductor in charge of a train of the licensed company, is that company liable therefor? That is the question which this case presents.

The decisions involving the proposition are not numerous, and they are contradictory. The court below followed the rule laid down in Atwood v. Chicago, R.I. & P. Ry. Co. (C.C.) 72 F. 447. In that case both the railroad companies were made parties defendant, and the negligence alleged by the plaintiff was that the receivers of the Union Pacific Company negligently and carelessly permitted a Rock Island train to leave Lawrence within five minutes after the departure of a train of the Union Pacific. The evidence, however, tended to show that, after the Rock Island train left Lawrence, the employes in charge of it, knowing that the Union Pacific train was in front, could, by the exercise of due care, have avoided the accident.

The court ruled that the plaintiff could recover only by proof of the negligence alleged in the complaint, and that as there was nothing to justify a finding that the Union Pacific Company started the trains from Lawrence too close together or that such act, if proved, was the proximate cause of the injury, there was no ground for holding that company liable for the injury, and as to the Rock Island Company, the court held that as the contract provided that the Union Pacific Company should have the exclusive right to make rules for the operation of that part of the road used by the parties jointly, and that all trains should move in accordance with the order of its superintendent, and since the Rock Island Company had no right or power to direct movements of its trains while on the track, it could not be held responsible to third parties, on the doctrine of respondeat superior, for any negligence of the men in charge of the train while running over such track, though they were in its employment and paid by it. This ruling was based upon the...