Little Rock & M.R. Co. v. Barry

• Decision Date: 31 January 1898
• Docket Number: 804.
• Citation: 84 F. 944
• Parties: LITTLE ROCK & M.R. CO. v. BARRY.
• Court: U.S. Court of Appeals — Eighth Circuit

84 F. 944

LITTLE ROCK & M.R. CO. v. BARRY.

No. 804.

Circuit Court, of Appeals. Eighth Circuit.

January 31, 1898

G. B Rose (U. M. Rose and W. E. Hemingway, on the brief), for plaintiff in error.

J. M Moore and W. L. Terry, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and PHILLIPS, District judge.

SANBORN Circuit Judge.

About 2 o'clock in the afternoon on October 26, 1890, engine No 5 of the Little Rock & Memphis Railroad Company ran into the rear of a freight train on the railroad of that company; and G. F. Barry, the defendant in error, who was the fireman on this engine, leaped from it, and was injured. He sued the company for damages, and alleged that he was injured by its negligence in employing an incompetent conductor upon the train his engine drew, and in failing to give notice to its servants in charge of engine No. 5 of the whereabouts and movements of the freight train, and in failing to give notice to its servants in charge of the freight train of the whereabouts and movements of engine No. 5. The plaintiff in error, the railroad company, answered that its conductor was not competent, and that it was not its duty to give the conductor and engineer of either of the trains which collided notice of the movements or whereabouts of the other. Upon these two issues the testimony was conflicting, and the jury found for the defendant in error. These facts, however, were uncontradicted: The railroad of the plaintiff in error extends from Hopefield, a town opposite Memphis, in the state of Tennessee, westward to Little Rock, in the state of Arkansas. The first telegraph station west of Hopefield is Edmondson, 15 miles distant, and the second is Forrest City 47 miles distant. Argenta is a station still further west, near the city of Little Rock. The freight train was a regular train. It had left Hopefield at 3:50 a.m.; was due at Edmondson at 5 a.m., but had been so delayed that it did not leave that station until 9:40 a.m., 4 hours and 40 minutes later than its schedule time; and while it was standing on the main track, on a curve in a deep cut outside the yard limits, about half a mile east of Forrest City, at about 2 o'clock in the afternoon, engine No. 5 crashed into the rear of it. The engineer in charge of this engine had passed this freight train at Edmondson at 9:30 that morning, on his way east to Hopefield, and he knew it was late. When the superintendent of the company delivered the order, under which the train drawn by engine No. 5 was operated on this day, to its conductor, he told him to look out for this freight train, as it was still in the bottom between Edmondson and Forrest City; and the conductor repeated this warning to the engineer when he communicated the order to him before leaving Hopefield. In the early part of this day a military company, which arrived at Memphis too late for the regular passenger train, engaged of this railroad company an extra train to take it to Little Rock, and the engineer and fireman of engine No. 5 were directed to draw this train with their engine. The freight train was, as we have said, a regular train, and it was known as 'No. 5.' This was the order under which the extra ran:

Little Rock & Memphis Railroad Telegraphic Train Order No. 5 31 Memphis, Oct. 26, 1890 ---------------------- To C. & E. of Eng. 5, Hopefield C. & E. No. 5 at Forrest City C. & E. Eng. 4 & No. 6 Brinkley Engine 5 will run from Hopefield to Argenta extra when No. 5 is overtaken pass and run ahead of them meet No. 6 and Eng. 4 at Brinkley, do not pass Brinkley Unless Eng. 3 is there. A.J.W.

The rules of the company made this extra train inferior in grade to the regular freight train, under this order, and imposed upon its conductor and engineer the duty to keep out of the way of that freight train, which they knew was somewhere upon the single track in front of them. These rules also required the crew of the freight train, when it stopped and stood, as it did, for three-quarters of an hour before the accident occurred, on the curve, in a deep cut, one-half mile east of Forrest City, to immediately station and maintain a flagman 10 or 12 telegraph poles in the rear of its train, and to place torpedoes on the track, not less than 15 telegraph poles behind it, for the purpose of warning and stopping approaching trains which might follow it. These rules gave the employees of the company notice that it proposed to use its railroad for the passage of trains at any time it chose, and that they must protect themselves against their approach. The engineer of the extra train, however, did not keep his engine under control, so that he could stop it when he saw the freight train, but he drove it on with such speed that it was impossible for him to prevent the collision after he came in sight of the regular train; and the crew of the freight train failed to give warning to the approaching extra of the presence of their train, either by torpedo or by flagman. In short, these fellow servants of the defendant in error were guilty of gross negligence, without which it is highly improbable, if not impossible, that the accident could have occurred.

One of the rules of the company, however, required all orders to be given in writing, where practicable; and counsel for the defendant in error insisted that the company was negligent because it did not insert in the written order to the men in control of the extra train a statement that the freight train was delayed east of Forrest City, and an admonition to beware of it, and because the train dispatcher did not stop the extra train at Edmondson, as it passed there, and notify its crew again that the freight had not reached Forrest City. In support of their view, three witnesses for the defendant in error, who had had experience in railroading, testified that in their opinion this course should have been pursued. On the other hand, it appeared by the evidence that this railroad was operated under the standard rules, which were prepared some years ago by experienced railroad men chosen for the purpose by the officers of various railroad companies, and that they had been subsequently so generally adopted, as the best in use, that, in 1888, 58,000 (and at the time of the trial many more) miles of railroad were governed and operated under them. Three witnesses of skill and experience in the operation of railroads, who were familiar with these rules, and the practice of railroads under them, testified, in effect, that in their judgment, and in the judgment of those who had prepared and adopted them, they were the best and the most conducive to safety of any rules in use in this country; that it is more conducive to the safety of the operation of railroads to require the men in charge of a train to look out for, and protect themselves at all times against, other trains and engines, without notice of their whereabouts and movements, than it is to undertake to give them notice of these movements and whereabouts, and this for the reason that if men receive, and come to expect, notice of approaching trains, they will invariably relax their vigilance, and rely upon the notice, rather than upon their watchfulness, for their safety, and that in the long run they will be caught in danger more frequently, and more accidents will happen at times when it is impossible or impracticable to convey notice to them, than would occur if they were spurred to constant watchfulness by the knowledge that a train was liable to come upon them at any time without notice. These witnesses testified, in substance, that this was the theory upon which the standard rules were based, and that they did not require the superintendent or train dispatcher to give the men in charge of either of these trains notice of the whereabouts or movements of the other. They also testified that in their opinion neither the duty of the company, nor the safety of its servants, required that the crew of either train should have notice of the movements or whereabouts of the other, or that the extra train should be stopped at Edmondson, and its conductor or engineer informed that the freight was still between that station and Forrest City, where they knew it to be when they started. In this state of the evidence, it is assigned as error that the court charged the jury: 'In sending out special or extra trains, due and sufficient notice of the movements and whereabouts of all other trains and locomotives which are liable to be met or overtaken by the special or extra should be given to the officers or servants in charge of such trains. And due notice of such special or extra train should, in like manner, be given to the servants in charge of such other trains, as far as may be necessary to guard against and prevent accident. And if, from any cause, it is impracticable to give such notice, then such other precautions as are reasonably adapted to prevent danger of collision or accident should be taken. If the jury believe from the evidence that the defendant, through any default or neglect on its part, failed to perform the aforesaid duties, and that the collision was caused by such failure, and that thereby plaintiff sustained the injuries complained of, the defendant is liable in this action.'

This instruction is a plain declaration that the theory which the wisdom and experience of many of the most careful and intelligent railroad operators have deemed most conducive to the safety of their employees, their passengers, and their property, is unsound, that the rules based upon it are unreasonable, and that the operation of a railroad in accordance with it is negligence. Such a declaration of the law ought not to be made without clear and convincing proof nor without the most careful and deliberate...