Spokane & I.E.R. Co. v. Campbell

• Decision Date: 19 October 1914
• Docket Number: 2366.
• Citation: 217 F. 518
• Parties: SPOKANE & I.E.R. CO. v. CAMPBELL.
• Court: U.S. Court of Appeals — Ninth Circuit

217 F. 518

SPOKANE & I.E.R. CO. v. CAMPBELL.

No. 2366.

United States Court of Appeals, Ninth Circuit.

October 19, 1914

On the afternoon of the 31st day of July, 1909, at about 4:30 o'clock, the defendant in error, plaintiff below, he being the motorman, started with his train of three cars-- the motor car and two trailers-- out of Coeur d'Alene over the electric line for Spokane. When he had proceeded a short distance from Coeur d'Alene, a mile and a half or two miles, he ran into another train coming in the opposite direction, whereby he was injured, and a number of passengers on his train lost their lives, while others were more or less injured. The train he was running was a special, known as No 5, and he testifies that he received written orders for running it, also oral orders from the conductor, and that he moved out on the line in pursuance of such orders; that when he had gotten out on the road some distance and observed the approaching train, he set the air brakes, which held for a short time only, then let go, supposedly by the escape of the air, and he thereby lost control of his train, and was unable to stop it or further check its speed. As a consequence he ran into the train coming from the other way, the latter train, however, having been brought to a stop before the collision. In this testimony plaintiff has corroboration.

According to the rules of the company, which were in evidence, a special train is expected to keep out of the way of the regular trains; that is to say, the special must take note of the schedule running time of all regular trains, and be on sidings at the stations where and when the regulars will pass, so as to allow a free track to the regulars. Specials are run on orders from the dispatcher with reference to another special, and the motorman is expected to make the passing stations as directed.

'Did the plaintiff Campbell receive, before leaving Coeur d'Alene, train order No. 53, reading as follows 'Train Order No. 53. From Spokane 7--31-- 1909. To Motor 5 at C. D. Alene Station: Motor 5 will run Spl. C. D. Alene to Spokane meet special 4 east at Alan.' Yes.'

'Special Finding I.

The defendant's testimony tends to show: That plaintiff together with the conductor, was given and received a running order for No. 5 before leaving Coeur d'Alene station, directing No. 5 to meet No. 4 at Alan station, which order was in the following language: 'Motor 5 will run Spl CD Alene to Spokane meet Spl 4 East at Alan. ' And, further, that the train was equipped with air brakes and other equipment for controlling and stopping the train, and that these had been properly and recently tested for determining their efficiency, and found to be in good order.

The cause having been tried before a jury, the following special and general verdicts were returned:

'Verdict.

'We, the jury in the above-entitled cause, find for the plaintiff, and fix the amount of his damages at the sum of $7,500.00 (seventy-five hundred dollars).'

'Special Verdict.

'Q. Were the air brakes on Campbell's train immediately before the collision insufficient to enable Campbell to control the speed of the train? A. Yes.'

'Special Finding II.

'If you find that plaintiff left Coeur d'Alene in violation of his orders, then answer this question: Was that leaving in violation of his orders the proximate cause of the accident? Yes.'

Motion was interposed for judgment in favor of defendant on the special findings, notwithstanding the general verdict, which was denied. Later a petition for a new trial was also denied, and judgment rendered for plaintiff. Error is prosecuted from this judgment.

Graves, Kizer & Graves, of Spokane, Wash., for plaintiff in error.

Belden & Losey, of Spokane, Wash., and H. Lowndes Maury, of Butte, Mont. (Henry R. Newton, of Spokane, Wash., of counsel), for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge (after stating the facts as above).

Three questions are urged upon our attention: First, whether the Safety Appliance Act of Congress has application to interstate electric railroads, it being contended that the defendant was not bound to equip its motors with air brakes; second, whether the trial court should have allowed the motion for judgment non obstante; and, third, whether the motion for new trial should have been granted.

Section 1 of the Safety Appliance Act of Congress, March 2, 1893, requires common carriers engaged in interstate commerce by railroad to equip their locomotive engines with power driving-wheel brakes and appliances for operating the train-brake system, and to equip a sufficient number of cars in the train with power or train brakes so that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for the purpose. 27 Stat. 531. By an amendment of this statute (Act March 2, 1903, 32 Stat. 943) the provisions and requirements thereof relating to train brakes, automatic couplers, etc., are made to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and to all other locomotives, tenders, cars, and similar vehicles.

There can be no doubt that when the primary act was passed, electrically propelled trains were not within the legislative mind, and where 'locomotive engine' occurs reference was had to a steam-propelled engine. And likewise when 'engineer' is spoken of, it had relation to a person in charge of a steam-propelled locomotive. But this does not signify that other locomotive or motor engines, and that persons driving other motor cars, may not come within the scope and intendment of the act. The purpose of the Legislature was to provide, among other things, for a more efficient and effective way of handling trains in interstate commerce, so that the speed and movement of the train might be regulated and controlled, and, when desired and in cases of emergency, readily brought to a stop, all from the engine and by the one person in charge of it, thereby to lessen the danger to employes and the public incident to the operation of railroads.

The electric railroad has since come into very general use, with its driving engines called motors, and its employes in charge of the engines are called motormen or enginemen. These railroads, notwithstanding, are common carriers of property and persons, the same as steam railroads, and have employes and come into relation with the public in the same way, the only essential difference being that electricity has taken the place of steam as a propelling agency or force, with differently contrived engines, suited to the harnessing of the propelling agency to the use desired, so that the broad purpose of the Legislature applies as completely to the one kind of railroad as to the other. In a narrower sense, a locomotive engine is spoken of as an engine propelled by steam; but when the statute, as the amendment does, extends the provisions of the act to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and to all other locomotives, tenders, cars, and similar vehicles, it broadens the significance so as, without question, to include motors electrically propelled, used upon railroads engaged in interstate commerce. So, also, the original act, with its amendment, includes the operators of such engines, whether called engineers or motormen. We think the statute is broad enough to require that electrically propelled engines and trains engaged in interstate commerce, as well as steam-propelled engines and trains, shall be equipped with air brakes for their efficient operation and control.

The next question may be more clearly resolved by understanding what were the issues presented to the jury for their verdict. The complaint, so far as it is pertinent to the inquiry, alleges:

'(4) That plaintiff on said date aforesaid was directed by the agents, officers, and employes of said defendant to take his said train No. 5, and to proceed from said town of Coeur d'Alene to the city of Spokane, and that plaintiff was given orders, directing him to meet and pass regular train No. 20 at the town of Alan; that when rounding a curve and nearing the station of Gibbs, state of Idaho, which is a point between Coeur d'Alene City, Idaho, and the town of Alan, this plaintiff saw a train coming from the opposite direction and running on the same track upon which said plaintiff's train was running, which said train plaintiff is now informed and believes was Regular Train No. 20.

'(5) That upon the coming into view of said train No. 20, plaintiff used all due diligence to bring his motor upon said train No. 5 to a stop and standstill; that he duly applied the air brakes upon said motor, but, owing to the defective condition of said air brakes, which said condition was wholly unknown to plaintiff, said brakes wholly failed and refused to act, and plaintiff's said train continued to rush forward at a tremendous rate of speed and a collision occurred, plaintiff's said train colliding with said train No. 20, and which said collision caused the injuries hereinafter complained of.

'(6) That said accident and collision was

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