Royce v. Delaware, L. & W.R. Co.

• Decision Date: 25 May 1911
• Docket Number: 275.
• Citation: 188 F. 55
• Parties: ROYCE v. DELAWARE, L. & W.R. CO.
• Court: U.S. Court of Appeals — Second Circuit

188 F. 55

ROYCE v. DELAWARE, L. & W.R. CO.

No. 275.

United States Court of Appeals, Second Circuit.

May 25, 1911

Hatch &amp Clute (Edward S. Hatch and Vincent P. Donihee, of counsel) for plaintiff in error.

Frederick W. Thomson, for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD Circuit Judge.

This is a writ of error to a judgment on a verdict directed by the court in favor of the defendant. 180 F. 879. On a former writ we reversed the judgment entered on a verdict of a jury in favor of the plaintiff, because we found no negligence on the defendant's part as master. 176 F. 331. It had prescribed reasonable rules, which required conductors to report defects in cars or engines to the superintendent. But the conductor who was the plaintiff's fellow servant, reported to the chief train dispatcher asking merely for a pusher to help the train in, which was sent. The chief train dispatcher's duties under the rules concerned only the movement of trains and distribution of cars. Therefore we held that the master, having no notice whatever of the accident en route to an engine which started out after sufficient inspection, was not guilty of any failure of duty to the plaintiff in respect to it. That was the ground of the decision. On this trial, however, the plaintiff proved that the rule requiring such defects to be reported to the superintendent was never observed. It was the practice, on the contrary, to report to the chief train dispatcher, who, by the regular course of business, whether he consulted him or not, acted in the place of the superintendent. Accordingly the situation now is as if the defendant had allowed the engine to start on a trip in a disabled condition, or as if the superintendent himself had done en route exactly what the conductor and engineer did. It was therefore clearly for the jury to say whether letting the disabled engine proceed with the train was reasonable care on the part of the defendant as master or on the part of those who stood in its place. It is no defense that the chief train dispatcher, when acting for the superintendent as alter ego of the master, may have supposed that the engineer had disconnected the disabled side of the engine, because the failure to do so, if negligence, would be the negligence of the defendant as master, and not the negligence of the engineer as the plaintiff's fellow servant.

It is sought to sustain the judgment...