Stone v. Union Pac. R. Co.

• Decision Date: 09 February 1909
• Docket Number: 1906
• Citation: 100 P. 362,35 Utah 305
• Court: Utah Supreme Court
• Parties: A. I. STONE, as Administrator of the Estate of BENJAMIN F. ECKLES, Deceased, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

100 P. 362

35 Utah 305

A. I. STONE, as Administrator of the Estate of BENJAMIN F. ECKLES, Deceased, Respondent, v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellant

No. 1906

Supreme Court of Utah

February 9, 1909

[Copyrighted Material Omitted]

Appeal from the Second District Court Weber County.--Hon. J. A Howell, Judge.

Action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. From a judgment for plaintiff, the defendant appealed.

REVERSED.

P. L. Williams, Geo. H. Smith and John G. Willis for appellant.

W. L. Maginnis and James H. DeVine for respondent.

FRICK, J. McCARTY, J., concurs. STRAUP, C. J., dissenting.

OPINION

FRICK, J.

This is an appeal from a judgment in favor of respondent entered in an action brought by him to recover damages for the death of his intestate, alleged to have been caused by the negligence of the appellant. The death resulted from a collision of a passenger train and a freight train run in opposite directions over the defendant's line of railroad near Azusa in the state of Wyoming. Deceased was in defendant's employ, and was the engineer of the freight train, designated "Extra 1,661," the number of the engine drawing the train. The train consisted of thirty-one loaded freight cars carrying about 1,027 tons. It was started eastward over defendant's line from Evanston at 5:20 p. m. on November 11th, 1904. It was an ordinary fast freight, carrying miscellaneous through merchandise. It had no regular time, and was not shown on the regular schedule of trains, but traveled entirely on telegraphic orders. Its movements over the road were controlled by telegraphic orders issued by the train dispatcher at Evanston, which orders were transmitted by him by means of the telegraphic code to operators at various stations along the line, and which were by them repeated, transcribed, and delivered to the train operatives. The movements of all trains were kept by the train dispatcher from information furnished him by the operators at all stations where there was telegraphic communication. These operators reported to the dispatcher, among other things the arrival, departure, and passage of all trains.

The first division over which extra 1,661 traveled was from Evanston to Granger, a distance of about seventy miles. Between Evanston and Granger were about fourteen stations, from four to seven miles apart. When the train left Evanston, it had running orders to run to Granger. When it reached Granger all orders theretofore delivered to the train crew of No. 1661 concerning the movements of the train ended and became ineffectual. From Granger east the train was in effect a new train. The crew was not authorized to proceed east of Granger without first having received new telegraphic orders from the train dispatcher at Evanston. The passenger train designated No. 3 was running west. At Altamont, which is about twelve or thirteen miles east of Evanston, the crew of No. 1661, at 8:05 p. m., received train order No. 59, which read as follows:

"No. 3 will run one hour, thirty minutes late Green River to Evanston. No. 5 will run fifty minutes late Green River to Granger. H. V. P. (Initials of Superintendent.) Conductor and engineman must each have a copy of this order. Repeated at 7:39 p. m. Conductor Lowham. (Conductor of No. 1661.) Made complete at 8:05. Received by E. Gordon. (Operator at Altamont.)"

Green River is about thirty miles east of Granger, or one hundred miles east of Evanston. Train 1661 arrived at Granger at 11:25 p. m. Its train crew at that place received, at 11:35, train order No. 66:

"Engine 1661 will run extra Granger to Green River ahead of Nos. 19 and 25 Granger to Peru. H. V. P. Conductor and engineman must each have a copy of this order. Repeated at m. Conductor Lowham. Train 1661. Made comp. at 11:35. Received by Miller."

At the same time and place they also received a train order from Miller, which was also numbered 59, and read as follows:

"No. 3 will run one hour and fifty minutes late Green River to Granger. H. V. P. Conductor and engineman must have a copy of this order. Repeated 7 p. m. Conductor Lowham. Train 1661. Made comp. at 11:35 p. m. Received by North."

The method of issuing train orders by the train dispatcher at Evanston was as follows: He would issue the order and cause it to be transmitted by wire to the station operator first in order and this operator would then repeat it back to the dispatcher. In that way the dispatcher would be informed whether the order was correctly received and understood by the operator. If the order was repeated back correctly, the dispatcher would "O. K." it and so inform the operator, and then make a record of it in a book kept for that purpose in the dispatcher's office. All orders were numbered consecutively, commencing at midnight of one day and ending at midnight of the next. If it was desired to transmit an order to more than one operator, it would be transmitted to as many operators along the line as would be required to report the same to the train crews which were affected by the order, and the order would be repeated back to the train dispatcher by each operator in the same manner as was done by the first who received it. The repetitions of the order would be indicated by the train dispatcher by writing in the record referred to the name of the station or operator opposite to the order as recorded in the book, and by drawing a line or underscoring the name of each operator receiving it. In this way the record would show to whom the order had been sent, and how often it had been repeated back as correct. Train order No. 59, in which No. 3 was reported to run one hour and thirty minutes late, had been repeated back in that form to the dispatcher six times by different operators along the line during the evening and night of the accident. Each operator was required to transcribe train orders in accordance with the rule in force on appellant's system, which provided:

"Operators receiving train orders must write them in manifold during transmission, and if they cannot at one writing make the requisite number of copies, must trace others from one of the copies first made, repeating the same to dispatcher and receiving his 'O. K.'"

The usual number of orders required for each train was three, one for the conductor, one for the engineer, and one for the operator, from which, if more were needed, others were to be traced as stated in the rule.

The record kept by the train dispatcher at Evanston contained the record of train order No. 59, in which No. 3 was shown to run one hour and thirty minutes late, but did not disclose any order that No. 3 would run one hour and fifty minutes late. How the second No. 59 order was changed from one hour and thirty minutes to one hour and fifty minutes is not made to appear, except by inference. It does appear, however, that both train orders, No. 59 and No. 66, were received by Miller, the telegraph operator at Granger, and were transcribed by him and delivered to the train crew of No. 1661. Both were in his handwriting. Prior to November 9th, Miller had been the regular night operator at Granger. He resigned on the 9th day of November. An operator by the name of Northington was sent to take his place. Northington was not on duty the night of the 11th. Miller was the operator in charge and received, transcribed, and delivered the last two train orders referred to. He signed his own name to one of them; to the other the name of "North"--for Northington.

In addition to the foregoing, there are other material facts, but, in order to avoid unnecessary repetition, it is deemed best to state them in connection with the particular question discussed.

In the complaint, the acts and omissions constituting appellant's alleged negligence, so far as material here, are, substantially, stated to be as follows That said appellant was "negligent and careless in this, to-wit, that whenever in a train order it was necessary to use figures, that the same should be transmitted by its train dispatcher to the operators at the various stations concerning the movements of trains on its road, ordinary care and prudence require that such figures should be expressed in the telegraphic code over the telegraph wires in both words and numerals, and plaintiff says that ordinary care and prudence required of the said defendant company that it should make and promulgate a rule to its various train dispatchers, operators, and other employes requiring them in transmitting their orders from the telegraph wires to express figures used therein in both words and numerals, so as to prevent possibility or probability of such message being wrongly transcribed"; that the appellant negligently failed to promulgate such a rule, "but allowed and permitted its train dispatcher to issue, the order heretofore referred to in figures only"; that the defendant well knew "that such a rule was required to prevent mistakes, and said train dispatcher, being permitted to do so by said defendant, failed to send said train order in words and figures but sent the same . . . by the use of numerals only, thereby causing said train order to be transcribed so as to read that No. 3 would run one hour and fifty minutes late; that said No. 3 was not one hour and fifty minutes late; that said train order as transcribed was delivered to the employees of said freight train, which caused them to believe they had sufficient time to run to Azusa and go upon the side track before No. 3 reached them, . . . and thereby the said failure of the said company to make and promulgate such rule caused the said two trains to collide together, and caused the death of plaintiff's...