Southern Pac. Co. v. Yeargin

• Decision Date: 24 April 1901
• Docket Number: 1,440.
• Citation: 109 F. 436
• Parties: SOUTHERN PAC. CO. v. YEARGIN.
• Court: U.S. Court of Appeals — Eighth Circuit

109 F. 436

SOUTHERN PAC. CO. v. YEARGIN.

No. 1,440.

United States Court of Appeals, Eighth Circuit.

April 24, 1901

Thomas T. Fauntleroy (C. H. Fauntleroy and Alphonso Howe, on the brief), for plaintiff in error.

Charles S. Varian (Charles S. Zane, Lindsay R. Rogers, and W. R White, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is a suit for personal injuries. The accident which resulted in the death of T. J. Yeargin, the plaintiff's husband occurred on the night of February 28, 1899, at a point about one mile east of Hot Springs, in the state of Nevada, on the line of a railroad which was owned and operated at the time by the Southern Pacific Company, the plaintiff in error which was the defendant below. The circumstances attending the death of the plaintiff's husband were as follows: He was an engineer in the employ of the defendant company, and was operating an engine attached to an east-bound passenger train on the defendant's road, which, when on time passed through Hot Springs at 10:53 p.m., but was not scheduled to stop at the latter station. About one mile east of Hot Springs, while his train was running at a speed of about 30 miles per hour, it came into collision with what is known as a 'helper engine' belonging to the defendant company, which was running backward from a station known as 'Mirage,' which was about 6 miles east of Hot Springs. The helper engine, although on the main track of the defendant's road, was not provided with a headlight at the rear end of the tender, but in lieu thereof an ordinary lantern was suspended at the rear end of the tender, at a point about five feet above the surface of the rail. The contention on the part of the plaintiff below was that the collision was occasioned in part, at least, by the insufficient equipment of the helper engine, in that the usual headlight was not attached to the rear end of the tender, as it should have been, when the engine was running backwards upon the main track. The record discloses that the station above mentioned known as 'Mirage,' is considerably higher than Hot Springs, and also higher than a station known as 'White Plains,' which is the next station east of Mirage; that, for the purpose of helping trains over the high elevation between Hot Springs and White Plains, the defendant company at the time of the accident, and for many years previously, kept two helper engines at Hot Springs to assist passenger and freight trains over the divide; that, when one of these helper engines was attached to the rear end of a train, it would often be uncoupled at Mirage, which was about at the summit of the divide, instead of going through to White Plains, and would then run backwards to Hot Springs, there being no turntable or Y at Mirage by means of which the helper engine could be turned. On the night of the accident one of these helper engines, in charge of an engineer by the name of Shriver, left Hot Springs very shortly after 10 p.m. to help an east-bound freight train over the divide. At Mirage he uncoupled his engine from the freight train and started back to Hot Springs, and when about a mile east of Hot Springs came into collision with the east-bound passenger train; the result of the collision being that the plaintiff's husband, who was the engineer on that train, was killed, as well as two firemen, namely, the fireman on the passenger engine and the fireman on the helper engine. The time usually consumed by a helper engine in assisting a train upgrade to Mirage and returning to its post on the side track at Hot Springs was about 35 or 40 minutes, on the average, Mirage being, as above stated, only about six miles distant. It seems that shortly before Shriver left Hot Springs, on the night of the accident, to assist the freight train over the divide, he was shown a telegram from the train dispatcher of the defendant company to the effect that '2nd No. 1' would run 1 hour and 15 minutes late from a place called 'Wadsworth,' which seems to have been west of Hot Springs, to Lovelocks, a station some distance eastwardly from Hot Springs. This dispatch, if interpreted as the train dispatcher intended that it should be interpreted, indicated that east-bound train No. 1, which was due at Hot Springs at 10:53 p.m., was running in two sections, and that the second section of the train was an hour and 15 minutes late. Because no mention was made of the first section it was expected that Shriver and other employes of the defendant company to whom the dispatch was shown would understand that the first section of the train was very nearly on time. Shriver for some reason misinterpreted or misunderstood the order of the train dispatcher, and, instead of taking the side track at Mirage to await the passage of the first section of the passenger train, he started back to Hot Springs, and came into collision with the first section of the passenger train, in the manner heretofore explained.

The exceptions which were taken on the trial to the admission and exclusion of evidence have been considered, but they are not of sufficient importance to require comment, and we shall accordingly direct our attention to certain propositions of law embodied in the instructions which the trial court declined to give, and with respect to which action error is assigned by the defendant company.

The first instruction which was asked by the defendant, and was refused, was an instruction to the effect that under the evidence the plaintiff below could not recover. The proposition urged in support of this instruction is that, in view of the undisputed facts in the case, the sole proximate cause of the collision was the act of the engineer Shriver, a fellow servant of the deceased, in running the helper engine back from Mirage to Hot Springs on the time of the first section of the passenger train. The learned judge of the trial court took a different view of the case, holding, in substance, that it was the province of the jury to decide what was the proximate cause of the accident, and that, although Shriver may have been at fault in misconstruing the order of the train dispatcher and in running back on the main track, yet there was evidence from which a jury might find that the neglect of the defendant to provide headlights for its helper engines when they were running backwards on the main track was a proximate contributing cause of the injury, for which the defendant might be held responsible. We are to determine which of these views is correct. Mr. Justice Strong, speaking for the supreme court of the United States, said in Railway Co. v. Kellogg, 94 U.S. 469, 474, 24 L.Ed. 256, 259:

'The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or legal knowledge. It is to be determined as a fact in view of the circumstances of fact attending it.'

In the present instance, therefore, the jury had the right to determine whether the failure of the defendant company to provide its helper engines with proper headlights was so related to the collision, in view of all the surrounding circumstances, as to be esteemed one of the proximate causes thereof, unless it can be said that there was no evidence in the case which would lead a reasonable mind to that conclusion. The testimony tended to show that the track of the defendant's road was straight, and that there were no intervening objects to obstruct the view for at least 2 1/2 miles east of Hot Springs; that the track for that distance crossed an alkaline desert; that it was a windy night and that there was much dust in the air; that an ordinary headlight, such as is usually used on locomotives, could have been seen under such conditions as prevailed that night, and recognized as a headlight, for at least two miles, whereas the lantern that was suspended at the rear end of the tender and only 5 feet above the track, might not have been visible on such a night for a distance of more than 250 yards; and that such a train as the deceased was handling, running at a speed of 30 miles an hour, could not have been stopped within the latter distance, and probably could not have been stopped short of a quarter of a mile. In the light of such surrounding circumstances, we think that the jury might well have concluded, as they appear to have done, that if a headlight had been attached to the rear end of the tender of the helper engine, instead of an ordinary lantern, which could only be seen for 250 yards, and might not then have been recognized as being on a moving locomotive, the deceased would have seen the approaching engine, and would have stopped his own train in time to have prevented any serious consequences, and that, in the line of causation, the absence of a headlight on the tender stood next to the collision, and was one of the efficient causes thereof. It is said, however, that the accident would not have occurred but for the act of Shriver in running his engine back from Mirage to Hot Springs on the time of the passenger train, and that for this reason the want of a headlight ought not to be regarded as one of the causes of the collision, so as to render the defendant company liable. The same line of reasoning would excuse the company from responsibility for neglecting to equip any of its locomotives with headlights. It might be said that if train orders are properly given and understood, and if established regulations for the movement of trains are carefully observed, it would never happen that two trains moving rapidly in opposite directions would meet on the same track between stations. All orders given and all regulations made by railroad companies are designed in part, at...