Ragsdale v. Northern Pac. R. Co.

• Citation: 42 F. 383
• Parties: RAGSDALE v. NORTHERN PAC. R. CO.
• Decision Date: 15 November 1889
• Court: U.S. District Court — District of Minnesota

42 F. 383

RAGSDALE v. NORTHERN PAC. R. CO.

United States Circuit Court, D. Minnesota.

November 15, 1889

McDonald & Barnard and M. E. Clapp, for plaintiff.

John C Bullitt, Jr., for defendant.

SHIRAS J.

In the amended complaint filed in this cause it is averred that on the 17th day of March, 1888, the plaintiff was in the employ of the defendant company as a locomotive fireman; that in the performance of his duty as such he was on that day required to go upon engine No. 181, which was pulling a train between Missoula and Arlee, upon the line of defendant's road, in the then territory of Montana; that, through the fault and negligence of the defendant, a collision occurred between the train on which plaintiff was employed and another train belonging to defendant, near the station called 'Evaro;' that plaintiff, to avoid the danger of being crushed to death by the coming collision, jumped from the engine on which he was firing, and received injuries resulting in the amputation of his right leg. In the answer filed, it is averred that, by the rules of the company in force when the accident happened, it was the duty of all trains on defendant's road to stop at all night telegraph offices, and receive a clearance order before proceeding past such office, between the hours of 7 P.M. and 7 A.M; that under the rule it was the duty of the persons operating train No. 1 to stop at said station of Evaro, and not to pass the same until the proper clearance order had been received that, disregarding such rule, the persons operating said train No. 1 did not stop at said station, but proceeded on eastward until said train No. 1 met the engine on which plaintiff was riding, and came in collision therewith; that the collision was caused by the negligence of the persons operating train No. 1; that such persons were fellow-servants with the plaintiff, and for their negligence the defendant is not responsible. The demurrer to the answer presents the question whether the facts therein averred show that the defendant company is not liable for the injuries received by plaintiff.

If the solution of the problem thus presented was wholly dependent upon the determination of the question whether, under the rule of the common law, the plaintiff and the parties in charge of train No. 1, were fellow-servants, we would have presented the exact point which the supreme court stated, but did not decide, in the case of Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184. In that case an engineer was injured in a collision between two trains, which resulted from the negligence of the conductor of each train. The supreme court held that the relation of fellow-servant did not exist between the engineer and the conductor of the train on which the engineer was employed, but did not pass upon the question whether the conductor of the other train was or was not a fellow-servant with the injured engineer. The conclusion reached in that case, to the effect that the engineer and conductor of the same train were not fellow-servants, is placed upon the ground that the conductor was charged with the duty of running the train; was in command of its movements; directed when it should stop and when it should proceed; had the general management thereof and control over the persons on the train; and must therefore be held to be the representative of the company, for whose negligence the latter would be responsible.

In the case at bar the answer avers that the collision was caused by the negligence of the parties in charge of train No. 1, whose duty it was to stop at the station, and not to proceed beyond the same until the proper clearance order had been obtained. If the plaintiff had been a brakeman or fireman on train No. 1, and had been injured in the collision, without fault on his own part, it is clear that, under the rule recognized in the Ross Case, he would have had a right of recovery against the company, because the answer avers that the collision was due to the negligence of the parties in command of that train, and who occupied the same relation to it that the conductor did in the Ross Case. Is a different conclusion to be reached by reason of the fact that the plaintiff was a fireman upon engine No. 181? The supreme court holds that the conductor, having the control and management of the running of the train, is to be deemed to be the representative of the company, and not a fellow-servant with the engineer and other employes on that train. So far as the running and management of the train under his control is concerned, does he cease to occupy such representative capacity under any circumstances? Suppose in the collision in question the fireman upon train No. 1 had been injured as well as the plaintiff, and both had brought suit to recover for the injuries received. Under the rule laid down in the Ross Case, the court would be required in the one case to instruct the jury that the conductor in charge of train No. 1 was, by reason of the nature of his employment in connection with the train, the representative of the company, for whose negligence the master would be liable. Upon what theory could the court in the next case charge the jury that in the running and management of this train the conductor was not the representative of the company, but was in fact a fellow-servant with the employes upon the other train?

The control of the train is placed in the hands of the conductor in order that there should be some responsible person charged with the duty of properly moving the train; that is, of determining when the train shall stop, and when it shall proceed, with reference to meeting and passing other trains upon the road. This power of control over the movements of a given train is not conferred upon the conductor with sole reference to the safety of the train upon which he is acting as conductor. He is charged with the duty of so moving his own train as to secure not only its own safety, but also to aid in securing the safety of other trains which are moving upon the same portion of the line. In the management of his own train the conductor must ever bear in mind that there may be other trains upon the road, and to secure the safety of his own train, and also of other trains, he must, as the representative of the company, exercise due care to avoid collisions. It is unquestionably the duty of the company, in running its trains, to exercise due care to see that the movements thereof are so regulated that collisions shall be prevented. For that purpose the defendant company adopted the rule set up in the answer providing that between the hours of 7 P.M. and 7 A.M. no train must pass beyond a telegraph station until it had received the necessary clearance order. The conductor of train No. 1 was charged with the duty of observing this rule, not only for the protection of his own train, but also for the protection of any other train coming towards the station from the opposite direction. The employes on train No. 1 had the right to rely upon the conductor for the proper observance of this duty, and, if he negligently disobeyed the rule, any employe suffering injury would, under the doctrine of the Ross Case, have a right of action against the company. The conductor was placed in control of the movements of the train, and, by reason of the power thus conferred upon him, he became the representative of the company in that particular. The employes upon the other train, which was properly handled, had the right to expect of the company that it would, through its representatives, so control the movements of its other trains...