Northern Pac. Ry. Co. v. Dixon

• Decision Date: 04 August 1905
• Docket Number: 1,775.
• Citation: 139 F. 737
• Parties: NORTHERN PAC. RY. CO. v. DIXON.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F. 737

NORTHERN PAC. RY. CO. v. DIXON.

No. 1,775.

United States Court of Appeals, Eighth Circuit.

August 4, 1905

The doctrine res ipsa loquitur does not apply as between master and servant.

Syllabus by the court.

A local telegraph operator, whose duty it is to gather and give information to the train dispatcher relative to the arrival of a train at his station, to enable the dispatcher to formulate orders for the movement of other trains, is a fellow servant of the train operatives in giving such information, so that the master is not liable to them for injuries caused by an erroneous order of the dispatcher induced by false information given by the local operator.

The doctrine, 'Res ipsa Loquitur,' is inapplicable to negligence cases arising between master and servant, because the possible causes of accidents during service are many, for some of which the master, and for others of which the servant is responsible, and the happening of an accident does not indicate to which class its clause belongs. The burden in such cases is always on him who alleges that the master was guilty of causal negligence to establish that fact. A finding that an accident happened and that the servant injured was not at fault does not sustain this burden, because the accident may have been unavoidable, or may have resulted from the negligence of fellow servants or from other causes for which the master is not liable.

The rules of a railroad company, that meeting orders must not be sent for delivery of trains of superior right at the points of execution if this can be avoided, and that there should be, if possible, at least one telegraph office between those at which opposing trains meet, do not constitute a peremptory prohibition and command, but except cases in which an ordinarily prudent man would deem it reasonably safe, in the light of the knowledge which the dispatcher has, to send a meeting order for delivery to a train of superior right at the point of execution, or to send meeting orders to opposing trains at points between which there is no telegraph station and there is no other practical way to reasonably operate the railroad.

The movement of freight trains by telegraphic orders, based on information relative to the location of the trains upon a railroad gathered and telegraphed by local operators or station agents to the train dispatcher, is a rational careful, and approved method of operating a railroad. It is not a lack of ordinary care for a train dispatcher to believe, rely, and act upon such information, although it shows that an extra freight train has not reached a given station several hours after it was due to pass it.

The defendant in error, as administratrix of the estate of Chauncey A. Dixon, brought this action against the Northern Pacific Railway Company, as she was authorized to do by the statutes of the state of Montana, to recover damages for the death of her son, Chauncey, which she alleged was caused by the negligence of the plaintiff in error. The parties waived a jury and made an agreed statement of facts, upon which the court rendered the judgment against the company which is here challenged. The facts material to the determination of the question now presented are these: Dixon was a fireman employed by the company in operating extra freight train No. 162, and he was killed on December 25, 1899, by means of a head-end collision of that train with extra freight train No. 159. The railway company was operating its railroad in Montana. It had made and promulgated time-tables for its regular trains, and had adopted reasonable rules for the operation of all its trains. The time-tables did not and could not provide for the running of extra trains. The railway company had in its employment a train dispatcher at Missoula, in the state of Montana, who had general power and sole authority to make and promulgate orders for the running of those trains which were not governed by the time-tables on the division of its railroad on which this collision occurred. A large proportion of its trains on this division were run as extra trains, and the times of their arrival and departure were not shown on the regular time-tables, but their movements were made upon telegraphic orders issued by the train dispatcher upon information furnished by telegraph to the train dispatcher by its station agents and operators along the line of the railroad. All these facts were well known to the intestate, Chauncey A. Dixon. The main line of the railroad extends from Missoula east to Helena, through Bonita, 26 miles east of Missouri, Carlan, 33 miles east of Missoula, Drummond, 53 miles east of Missoula, and Garrison, 74 miles east of Missoula. It has but a single track. This railroad has a branch, which extends in a southeasterly direction from Garrison to Butte. On the night of December 24, 1899, No. 162 was running east on the main line from Missoula to Helena, and No. 159 was running northwest on the branch line from Butte to Garrison. These trains were running under special schedules not included in the time-tables, and under the telegraphic orders of the train dispatcher at Missoula, in accordance with the rules of the company. No. 162 left Missoula for Helena at 10:20 p.m. on December 24, 1899. It arrived at Bonita at 12:35 a.m. on December 25, 1899, and left there at 12:50 a.m. on that day. It was the duty of the telegraph operator and station agent at Bonita to observe the movement of trains passing through this station, and to advise the train dispatcher at Missoula of their movements. But he was asleep when this train passed his station, and he did not know of or report its passage. The only telegraph offices open during the night between Missoula and Garrison were those at Bonita and Drummond. When No. 162 left Missoula, and when it left Bonita, No. 159 was still on the branch line between Butte and Garrison, where it arrived at 1:05 a.m., and 'until said train No. 159 reached Garrison it had not been nor could it be determined whether said train No. 159 would run beyond Garrison or would stop at that point. ' The rules of the company provide, among other things, that 'meeting order or orders, conferring rights to the point where placed, must not be sent for delivery to the trains of superior right at the point of execution, if it can be avoided. When it cannot be avoided, special precaution, must be taken by the train dispatcher and operators to insure safety, and the following notice will be incorporated in the order, viz.: viz.: Train . . . gets this order at . . . There should be, if possible, at least one telegraph office between those at which opposing trains receive meeting orders. ' Upon the arrival of No. 159 at Garrison, at 1:05 a.m. on December 25, 1899, the train dispatcher asked the telegraph operator and station agent at Bonita by telegram whether or not train No. 162 had arrived there, and he promptly answered that it had not. The train dispatcher then ordered the train crew of No. 159 to run extra from Garrison to Missoula, and to meet No. 162 at Carlan, and this order was received by that crew at Garrison. At the same time he ordered the crew of No. 162 to meet No. 162 by Carlan, and sent this order to the operator and station agent at Bonita to deliver to them. He ordered a red signal displayed at Drummond to stop No. 159, so that the meeting point could be changed on its arrival at that station if necessary. These orders were complete at 1:18 a.m. At 1:20 a.m. No. 159 left Garrison, and it arrived at Drummond at 1:57 a.m., and the train dispatcher was immediately informed of this fact. He then inquired of the operator and station agent at Bonita whether or not extra freight No. 162 had arrived at Bonita yet, and the latter promptly replied, 'No sign of them yet.' He then asked him if he was sure No. 162 had not passed, and he replied, 'Yes.' The train dispatcher then repeated his inquiry, and the operator and station agent at Bonita answered, 'Yes, I am sure freight 162 has not passed. ' Thereupon the train dispatcher issued an order to the crew of No. 159 to meet No. 162 at Bonita, and an order to the crew of No. 162 to meet No. 159 at Bonita, and sent the former order to Drummond and the latter to Bonita. The crew of No. 159 received their order and proceeded with their train. It collided with No. 162, and the intestate, Dixon, was killed by the collision, about four miles west of Drummond, at 2:15 a.m.

James B. Kerr (Emerson Hadley and C. W. Bunn, on the brief), for plaintiff in error.

A. M. Antrobus (D. J. O'Connell and R. J. Buglehaus, on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge, after stating the case as above.

At the first hearing of this case the negligence of the local operator at Bonita, who slept at his post and falsely informed the train dispatcher that extra freight No. 162 had not passed his station, was conceded to have been the cause of the collision and of the death of the intestate, and the only question argued was whether or not this operator was a fellow servant of the deceased, who was a fireman on that train. The Supreme Court decided that he was (Northern Pacific Ry. Co. v. Dixon, 194 U.S. 338, 24 Sup.Ct. 683 48 L.Ed. 1006), and thus disposed of the only issue that was then presented in this court. Since that decision was rendered counsel for the defendant in error has prepared another brief and argument, in which he contends that, although the negligence of the local operator may have been one of the causes of the accident, the negligence of the train dispatcher was either of the proximate cause of or contributed to cause it. This contention presents two questions: (1) Was...