Northern Pac. R. Co. v. Smith

• Decision Date: 15 January 1894
• Docket Number: 105.
• Citation: 59 F. 993
• Parties: NORTHERN PAC. R. CO. v. SMITH.
• Court: U.S. Court of Appeals — Ninth Circuit

59 F. 993

NORTHERN PAC. R. CO. v. SMITH.

No. 105.

United States Court of Appeals, Ninth Circuit.

January 15, 1894

A laborer on a work train is a fellow servant with the conductor and engineer of a freight train of the same company.

Ashton & Chapman and McBride & Allen, for plaintiff in error.

Henry J. Snively and Ralph Kaufman, for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This action was brought by the defendant in error (hereinafter called the plaintiff) against the plaintiff in error (hereinafter called the defendant) to recover damages for injuries received on the 23d day of October, 1890, in a collision between a freight and a working train belonging to defendant. Plaintiff was a laborer employed, with other persons, in cleaning up wrecks and making general improvements and repairs on defendant's railroad, under the control and management of a road master. At a point near Weston, a station in the Cascade mountains, the workmen were told by the road master to get on the work train, to be transferred a short distance, to a point where they were to be put at work. The workmen got onto the train, which consisted of three flat cars and an engine. There was a conductor of this train, but the road master directed its movements. Before leaving with the train, the road master sent a flagman to the next station east of Weston with directions, as some of the witnesses testified, to hold all trains at that point until otherwise ordered. The instructions to this flagman were in writing and this writing was not produced at the trial, and, its loss not being satisfactorily accounted for, the court refused to allow the road master, who gave the instructions, to testify as to what was contained therein. The flagman was not present at the trial. While the working train was moving slowly up the grade, without any expectation that the road would be occupied, it was met by a heavy freight train coming on a down grade around a sharp curve, and a collision occurred which demolished the working train, and in this collision the plaintiff was injured. The trial of the case resulted in a verdict in favor of the plaintiff.

The contention of the plaintiff in support of the verdict is that, in the absence of any testimony to the contrary, it must be presumed that the flagman performed his duty; that the collision occurred because the persons in charge of the freight train disobeyed the flagman's orders; or that the road master failed to give the proper order to the flagman or because the road master neglected his duty to put out another flagman when he moved the working train; or that the superintendent or train dispatcher, who had charge of the movements of the freight train, failed to give any directions with reference to the work train, which they should have known was occupying the track. The contention of the defendant is that the collision was brought about by the neglect either of the flagman, who was directed to stop the freight train, failing to perform his duty, or that the conductor and engineer of the freight train did not perform their duty by obeying the flagman's orders, and that none of the persons in charge of the working train were in any manner at fault. There was no testimony tending to show any negligence whatever upon the part of the plaintiff.

The court, of its own motion, among other things charged the jury as follows:

'The flagman referred to in the evidence, from the position which he held, and the position which the plaintiff was performing or filling, would be a fellow servant with him in the same common employment, within the meaning of the rule I have laid down. The conductors and engineers running these trains--the work train and the freight train--were not fellow servants of the plaintiff. The road master was not a fellow servant with the plaintiff. So, in determining these questions of negligence, it will be for you to find from the evidence, considering all the circumstances in which the trains were placed, and in which the men were placed; the character of the road, being a mountain road on a mountain division, with numerous curves, (a wreck having occurred there, which was being cleared away;) the freight train being behind time; and all the circumstances which are shown and not disputed in the case; and consider from all these circumstances where the responsibility may be placed, in accordance with the evidence,--whether upon the train dispatcher, the conductor of either of the trains, the engineer of either of the locomotives employed there, the road master, or this flagman,--or whether it was one of those casualties which cannot be ascribed to the fault of any one. If there was nobody to blame in this, the plaintiff has no case against the defendant. If the flagman was to blame, in the sense that his fault caused the collision to occur, then plaintiff has no claim against this defendant. If this injury, however, was caused by the fault and culpability of an officer or agent of the road, or one of the persons having control of the running of the trains at the time, as I have stated, then he does have a claim, unless you can find that this injury was in some degree caused by acts of negligence on his part, or at least that his negligence contributed to it in any way which would bar him from recovering, even if the defendant was in fault.'

Did the court err in giving this instruction? The flagman was a fellow servant with the plaintiff, and, if his negligence caused the collision, then plaintiff was not entitled to recover. This portion of the charge is not objected to. The testimony in the case is that the road master had charge of the movements of the working train. It is not claimed that the court committed any error in charging the jury that the road master and train dispatcher were not fellow servants with the plaintiff. There is no testimony in the record tending, in the remotest degree, to show that either the conductor or the engineer of the working train was guilty of any negligence, and there was no necessity of referring to them in the charge in the manner mentioned. The testimony in relation to the acts of the conductor and engineers of the freight train was to the effect that the flagman flagged the train before it reached Cole station; that the train stopped and the flagman stated that the work train was working in shed 26; that he did not give any other orders or make any other statement; that, when the freight train came to shed 26, the work train was not there; that it is the common custom, in such cases, for the freight train to move on, proceeding with care, until it should meet the working train; that, in pursuance of this custom, the conductor and engineers continued moving the...