Snipes v. Southern Ry. Co.

• Decision Date: 05 November 1908
• Docket Number: 817.
• Citation: 166 F. 1
• Parties: SNIPES v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

166 F. 1

SNIPES v. SOUTHERN RY. CO.

No. 817.

United States Court of Appeals, Fourth Circuit.

November 5, 1908

E. J Best and W. Boyd Evans (Geo. R. Rembert and Lawson D. Melton on the brief), for plaintiff in error.

B. L Abney (Abney & Muller, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and WADDILL and BOYD, District Judges.

WADDILL District Judge.

This is an action at law instituted by plaintiff in error, an engineer in the service of the defendant company, to recover damages for personal injuries received by him on the 16th day of November, 1906, in the state of South Carolina, while in the discharge of his duty as such engineer.

The defendant answered, denying negligence on its part, and insisted that the accident was caused by the contributory negligence of the plaintiff (which it alleges was the proximate cause of the accident) and that of the negligence of the conductor of the train, causing the accident; that said conductor and engineer were fellow servants, and the company therefore not liable to the latter.

The facts in the case are, briefly, that, on the morning of the day named, the engine of a certain work train known as 'Extra No. 476,' of which plaintiff was engineer, while going north, and when a few miles of Columbia, S.C., collided in a head-on collision with the engine of extra freight train No. 828, coming south, as the former was rounding a sharp curve, and the plaintiff received the injury sued for. The testimony relates almost entirely to the circumstances under which train No. 476 left Columbia, and whether or not the plaintiff was guilty of such negligence in taking his train from Columbia as to disentitle him to recover. Witnesses were examined in behalf of the plaintiff and defendant, including the plaintiff, and the conductor of the train, the train dispatcher, and the division superintendent of the company; at the conclusion of which a motion was made by the defendant to take the case from the jury, and instruct a verdict for the defendant, which motion the court sustained, and directed a verdict for the defendant, which was rendered, and judgment entered thereon, to which action the plaintiff excepted, and sued out this writ of error.

The trial court in directing the verdict considered the relation ordinarily existing between a conductor and an engineer, and commented upon the fact that this was an extra train, operated under special orders, as distinguished from general rules, which in its judgment imposed a joint responsibility upon the conductor and engineer, and after referring to the engineer's conduct at the time of and before leaving Columbia, and the fact of his obeying the orders of the conductor so to do, said:

'If that was the sole question in the case, I would still be inclined to leave it to the jury, although my opinion is that he did not take the precautions that a prudent man, and a reasonable man, ought to have taken; and that would be my opinion. But my opinion on the question of fact is not controlling, and I would prefer to have had the jury pass upon that. But another ground is presented, and that is that assuming that the conductor told him that No. 828 was in-- although the conductor now denies it-- but assume that is the fact, for I think the preponderance of the evidence establishes it, that he was so informed, all the circumstances tend to satisfy me that he believed No. 828 was out of the way, it was careless in him to think so, and to be governed by that thought; but now the case rests entirely upon as to whether or not the conductor was so far the representative of the master that independent of any investigation by him, or of any knowledge by him as to whether No. 828 was in, he was bound to obey the order of the conductor, the conductor so far representing the master that he was not a fellow servant of the engineer, and a great discussion has turned upon that question.'

The court thereupon held that, as to this train, the conductor and engineer were fellow servants, charged with like duties; that they stood upon the same footing, and that one could not devolve his duty upon the other.

It is as to the correctness of these rulings that we are to pass, and, although there are quite a number of assignments of error, they involve but three questions, as follows: (1) Did the court err in passing upon the conflict in the testimony between the plaintiff and the defendant as to what occurred respecting the departure of the train from Columbia which caused the accident; (2) in holding that, accepting the plaintiff's statement as to the occurrences, it was negligence for him to have so believed and acted, instead of submitting the two matters to the jury; and (3) in holding that the conductor and engineer on this occasion were fellow servants?

The rules and orders of the company specially bearing upon and applicable to this case, are as follows:

Rule 83. 'A train must not leave its initial station on any division, or a junction, or pass from double to single track, until it is ascertained whether all trains due, which are superior, or of the same class, have arrived or left.'

Rule 85. 'A train must not start until the proper signal is given.'

Rule 366. 'Conductors. Conductors will report to, and receive instructions from the superintendent and train master. They also obey the orders of station agents, station masters and yard masters at stations and in yards.'

Rule 367. 'Conductors. They will have charge of the trains to which they are assigned and of all persons employed thereon.

'They are responsible for the safe and proper management of such trains, for the protection and care of passengers, baggage and freight, for a thorough performance of duty by the train employes, and for the observance and enforcement of all rules and orders relative thereto. They will report all violations of rules and neglect of duty by the train employes to the superintendent or train master, and in cases of gross misconduct may, if necessary, suspend any such employe for the rest of the trip, reporting such action by wire, and holding the train should safety require it.'

Rule 375. 'Conductors. Before leaving the initial station on any division, they must report to the train dispatcher for orders, giving the number of the engine, name of the engineman, and number of cars in the train, and if there are no orders for them they must receive a clearance card, Form 802, properly dated, addressed and signed, and must see that the engineman receives one also.'

Rule 376. 'Conductors. They must examine the special order books and bulletin boards at such stations and at all points on the road where it is practicable to do so, and will be held responsible for the observance of all special orders and bulletins after they have had an opportunity to read them.'

Rule 465. 'Conductors. When their trains are in motion, unless their presence is required elsewhere, their proper place is in the caboose, and they must there maintain such position as will give them a full view of their trains and enable them to see whether they are all right and the men are in proper position and are performing their duties.'

Rule 500. 'Enginemen. They must obey the orders of the train master and the road foreman of engines. Within station and yard limits they must obey the orders of the station masters, station agents, and yard masters respectively. within shop and engine house limits, they must obey the orders of the foreman. They must obey the orders of their conductors with respect to the general management of their trains and to the station, yard or construction work in which they are engaged.'

Rule 515. 'Enginemen. As soon as the proper signal is given they must start their trains carefully and see that they have the whole train before passing the station or yard limits.'

Rule 508. 'Enginemen They must personally comply with rule 83 in all cases.'

Rule 105. 'Both conductors and enginemen are responsible for the safety of their trains and, under conditions not provided for by the rules, must take every precaution for their protection.' Order is as follows:

No. 23.

'Southern Railway Co., Train Order No. 23. Dated Columbia, S.C., Nov. 16, 1906. To 2nd and 3rd class and Extra Work Eng. 476. At Columbia, S.C. Work Extra 476 will work five 5 A.M. until eight 8 P.M. between Columbia and Winnsboro protecting against Extra 828 South and second and third class trains.

W.L.W., Superintendent.'

The action of the court in taking the case from the jury (1 and 2 above) will be first considered.

We are unable to concur with the court in its action in this respect. The real issue was, whose negligence caused this accident? Plaintiff said it was that of the defendant because the defendant's representative, under whom he acted, directed him to do what he did, which the representative denies. This involved a question of fact which the jury should have passed on, and not the court; as should also the jury have determined whether under all the facts and circumstances of the case, assuming the plaintiff's version to be true as to what occurred, he was warranted in acting as he did in the situation in which he was placed. Either or both of these questions the jury might have decided in favor of the defendant or of the plaintiff. The lower court undertook to pass upon them, instead of submitting them to the jury, and held the plaintiff's version of what occurred between himself and the conductor to be true, but that the plaintiff was not warranted, under the circumstances, in obeying the orders of the conductor. This was interfering with the province of the jury, who might have taken an entirely different view of the same from what the judge did; and it will neither...