Oregon Short Line & U. N. Ry. Co. v. Frost

• Decision Date: 15 June 1896
• Citation: 74 F. 965
• Parties: OREGON SHORT LINE & U.N. RY. CO. v. FROST.
• Court: U.S. Court of Appeals — Ninth Circuit

74 F. 965

OREGON SHORT LINE & U.N. RY. CO. v. FROST.

United States Court of Appeals, Ninth Circuit.

June 15, 1896

A local telegraph operator at a station on the line of a railroad who receives and delivers the orders of the train dispatcher in respect to the movement of trains, is the fellow servant of the employees of the railroad company in charge of the train. Hawley, District Judge, dissenting.

Shropshire & Burleigh, for plaintiff in error.

Robinson & Stapleton and F. T. McBride, for defendant in error.

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

GILBERT Circuit Judge.

The defendant in error was the plaintiff in the court below in an action brought by her as the administratrix of the estate of James W. Frost, deceased, to recover damages for his death. Frost was a locomotive engineer in the employment of the plaintiff in error on passenger train No. 5. On February 1 1891, his train was running north from Ogden to Butte, and was due at Dillon at 2:37 p.m. At 1:05 o'clock on that day the train dispatcher at the superintendent's office at Pocatello had telegraphed an order to the operator at Dillon that train No. 5 should wait at Dillon until 2:45 p.m. for train No. 32. Train No. 32 was a mixed freight and passenger train, running south from Butte to Dillon. The regular meeting point of these trains was at Dillon, but on the date aforesaid train No. 32 was behind time, and, in order to avoid its long delay at Apex the order was given. Train 32 was at Glenn, a station 18 miles north from Dillon. The order of the train dispatcher was received at Glenn in due time, and was delivered to the conductor and engineer of the train. Under the order so received, train No. 32 proceeded towards Dillon, upon the supposition that train No. 5 would wait there, as directed by the train dispatcher. The operator at Dillon received the order 32 minutes before train No. 5 was due there, but he neglected to warn it on its arrival. It was his duty, on receiving such an order, to display a red signal, which would indicate to train No. 5 that there were orders for it. It was also his duty, under the rules of the company, after receiving such order and displaying the red signal, to reply to the train dispatcher, 'Red displayed,' but he was not to send such reply until he had in fact displayed the signal, and this it was his duty to do immediately on receipt of the order. The order was laid aside by him, and forgotten, and he made no answer that he had displayed the red signal, as required by the rules. Upon the arrival of train No. 5 at Dillon, receiving no special order that it should not proceed on regular schedule time, it proceeded on its way, stopping at the water tank, a short distance from the station, for water, and then resuming. It had gone but a short distance, when it met train No. 32. In the collision Frost was injured, and eight days afterwards he died from the effects of the injury.

This case presents the important question whether or not the local telegraph operator at the station, who receives and delivers the orders of the train dispatcher, is the fellow servant of the employes of the railroad company in charge of the train. The court charged the jury that it was the duty of the railroad company to give notice that it had changed the time of running the trains, and that, if it intrusted that duty to the telegraph operator, his acts were the acts of the company, and that if he was negligent in this matter it was the negligence of the company. It is conceded that the train dispatcher, in giving notice of a change in the running of trains, acts for and in behalf of the railroad company. He is in that respect a vice principal, not because of his attitude to other employes as their superior, nor because he has charge of a department, but because of the nature of the duty which he discharges. He is, for the time being, clothed with the responsibility which rests upon the company to furnish its employes a safe place of operation. The ordinary running of the train is established by a fixed schedule, of which all operatives have notice, and by which their acts must be governed. When occasion arises to disturb the regular schedule, the duty rests upon the company to give timely notice to those that are to be affected thereby. This it is the office of the train dispatcher to do. But when he has given that information to a local operator, is that duty discharged, or does there rest upon the company the further obligation to see that all of its servants through whose hands that message goes on its way to the train employes shall deliver it as given, and that in case of any failure in the line of communication the company shall be liable for the resulting injury? In support of the latter view it is argued that if the duty to notify the train operatives of a change in the time-table is personal to the company, and cannot be delegated to a servant, so as to excuse the company from liability, it follows that such power, since it may not be delegated to one servant, may not be delegated by him to another, and that the reasons which lead to the conclusion that the train dispatcher is a vice principal lead directly to the further conclusion that the local telegraph operator stands in the same attitude to the company, and that the duty the company owes of furnishing a safe place of operation to its employes cannot be discharged short of actual notice to those who are to be affected thereby, and whose personal safety is dependent thereupon. After a careful consideration of the question and of the strong reasons that may be urged in support of either view of this proposition, it is our conclusion, that the better doctrine is that the local telegraph operator is the fellow servant of those who are in the control and management of the train. It is evident, and the court will take judicial notice of the fact, that a disturbance in the regular time schedule of trains is frequent and necessary in the operation of all railroads. It then becomes necessary to issue special orders for their direction. Conductors, engineers, and brakemen have knowledge of that fact, and they know when they enter into the employment of the railroad company that their notice of such orders must come through the local telegraph operator at the station, and that they incur the risk of accident through his negligence or mistake. The special orders issue, in the first instance, from the train dispatcher. It is obviously impossible for him to give personal notice to all who are to be governed thereby. The orders must, of necessity, be conveyed to some one in behalf of the others. The local telegraph operator, the conductor, the engineer, and the brakemen are all engaged in a common employment,-- that of moving the train. The operator, it is true, is subject to no personal risk from any change in the time card, but that fact is not a controlling one in deciding who are his fellow servants. There must be some point where the responsibility of the company ceases. If it does not cease at the time when the information is given to the operator, where shall it cease? Could it be said that a conductor who received from the operator a message from the train dispatcher, yet who failed to guide his action thereby, stands in the relation of vice principal to the conductor, engineer, or brakeman of another train, who may be injured by his negligence? or that, if the operator should receive instructions from the train dispatcher to send out a flagman to signal an approaching train, the company is responsible for the negligence of such flagman in failing to carry out such instructions? It seems just in principle to hold that the company has discharged its duty when it has given information to one of its servants who is engaged in the common employment of the others that are to be affected thereby, and has instructed him to notify his co-employes, and that when the company has exercised due care in selecting such local operator in the first instance, and has not been negligent in employing or retaining him in his office, it has discharged its duty, and that such operator stands in the attitude of a fellow servant to the trainmen. This doctrine is sustained by the clear weight of authority. The leading case in its support is Slater v. Jewett, 85 N.Y. 62. There the question arose whether the operator and conductor were fellow servants of the injured servant, in the same common employment. It was held that the telegrapher, whose duty it was to receive and give information of the whereabouts of trains and communicate orders to those controlling them, was closely connected with the work of the conductor, which was that of moving the trains, and that both were engaged in the same branch of the defendant's business. The court said:

'It is not true that on an occasion like this it is the duty of the master, or a part of his contract, to see to it as with a personal sight and touch that notice of a temporary and special interference with the general time-table comes to the intelligent apprehension of all those whom it is to govern in the running of approaching trains. It is utterly impracticable so to do, and a brakeman or a fireman on a train knows that it is as well as any person connected with the business. He knows that trains will often and unexpectedly require to be stopped, and that such orders must, from the nature of the case, be given through servants skilled in receiving and transmitting them. If there is due care and diligence in choosing competent persons for that duty, a negligence by them in the performance of it is the risk of the employment that the employe takes when he enters the service. Such a variation, and the giving notice of it, is not like the supply of

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