McKaig v. Northern Pac. R. Co.

• Decision Date: 01 September 1889
• Citation: 42 F. 288
• Parties: McKAIG v. NORTHERN PAC. R. CO.
• Court: U.S. District Court — District of Minnesota

42 F. 288

McKAIG v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Minnesota.

September, 1889

C. D. &amp T. D. O'Brien, for plaintiff.

J. C Bullitt, Jr., for defendant.

The facts in this case are as follows: On November 3, 1886, at 11:15 p.m., there was a collision between an east and a west bound freight train of the defendant, at Tower City, Dak seven-eights of a mile east of Tower City station, whereby the plaintiff, a fireman on the west-bound train, was injured, and this action is brought recover damages for such injuries. The two trains at the time of the collision, and for some time prior thereto, had been running on telegraphic orders emanating from the train dispatcher at Jamestown, to the local operator at Tower City, which method of running said trains had become necessary from the fact that the east-bound train was a special, and was also continually losing time, and the west-bound train was some hours behind time. The stations along defendant's line, as far as are material in this case, are, commencing at the east Casselton, Buffalo, Tower City, Valley City, and Jamestown. When the east-bound train was at Valley City, the west-bound train was at Casselton, and the train dispatcher at Jamestown, while these trains were at these respective stations, telegraphed orders, which were duly delivered to the trainmen of each train, to meet each other at Buffalo, abd after the delivery of this order to the engineer and conductor of the respective trains each train started on its journey. The east-bound train, however, lost so much time in getting up a heavy grade just east of Valley City that it became necessary to change the meeting point, and place it further west than Buffalo. The orders of the company regulating the movements of trains by telegraphic orders are as follows:

'The general rule to be observed in moving freight trains against each other is to obtain the understanding of the conductor and engineer of the train having the right to the road before running any train against them. If, however, the conditions are favorable for holding freight trains through the operator, and serious delays can be avoided thereby, dispatcher can depend upon the signature of the operator, green signals, and torpedoes, to hold such ruling train for orders at any telegraph station other than the meeting point, and, in extreme cases, trains can be held for each other at the meeting points by putting out red signals and torpedoes 1,000 feet in both directions from the telegraph office in addition to the green signal and torpedoes at the telegraph office. When there is no telegraph office at the meeting point, the red signal and torpedoes must be used for holding at the telegraph office distant from the meeting point.'

The train dispatcher at Jamestown telegraphed the operator at Tower City to put out the signals required by the rules to flag and hold the east-bound train for orders, and shortly afterwards said operator telegraphed back to the train dispatcher that the signals were out. The train dispatcher then issued the order changing the meeting place of the trains from Buffalo to Tower City. This order was delivered to the conductor and engineer of the plaintiff's train when it reached Buffalo, and thereupon that train proceeded from Buffalo, expecting to meet the east-bound train at Tower City. Orders were also sent to the operator at Tower City to be delivered to the conductor and engineer of the east-bound train when it reached that point. The east-bound train, however, ran through Tower City without stopping, and collided with the plaintiff's train, seven-eighths of a mile east of Tower City. The negligence charged is that the telegraph operator at Tower City failed to and neglected to put out the signals, as required by the rules of the company, in order to stop said east-bound train, and that the company therefore is liable.

NELSON J.

In this case I am constrained, from my view of the law, to say that the motion made by defendant's counsel must be granted. To entitle the plaintiff to recover under any circumstances, it is necessary for him to show that the injury which he sustained was in consequence of the negligence of the defendant. The collision was due to the negligence of somebody. If it was the negligence of the engineer of the east-bound train, owing to the fact that he was running too fast, so that he could not stop, or he failed to see any signals if any were put out, plaintiff cannot recover, because he was a fellow-servant and co-employe under the same employer, and the injury was due to the negligence of a fellow-employee in the same employment.

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