Thomas v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 13 April 1899
• Citation: 97 F. 245
• Court: United States Circuit Court, District of Kentucky
• Parties: THOMAS v. CINCINNATI, N.O. & T.P. RY. CO.

97 F. 245

THOMAS v. CINCINNATI, N.O. & T.P. RY. CO.

United States Circuit Court, D. Kentucky.

April 13, 1899

Mary R Gray, administratrix of Fletcher B. Gray, deceased, has filed her intervening petition seeking to recover damages from S M. Felton, receiver, appointed under an order of this court herein, and engaged in the operation of the railroad of the Cincinnati, New Orleans & Texas Pacific Railway Company. Fletcher B. Gray was employed as a yard conductor or foreman of the switching gang in the yard of the receiver at Somerset, Ky., which is the north terminus of the Chattanooga Division of the railroad. The second amended petition avers that on March 26, 1893, complainant's decedent, while in the yard at Somerset, Ky., was killed by the derailment of a caboose, and its consequent collision with a box car on the side track of defendant's railway, which derailment and collision occurred without fault of the complainant's decedent, but was caused by the negligence of the said defendant, his agents and employes, in causing said caboose to be operated over a defective track, over a switch of dangerous and defective construction and condition and by a careless and incompetent yard master of said defendant, by whose negligence the caboose was propelled at a dangerously high rate of speed over said defective track that the defendant knew, or could by the use of ordinary care have known, of said defective condition of the track, and of the unfitness and incompetency of said yard master, and of which complainant's decedent did not know, nor could by the exercise of ordinary care, have know. The receiver, in his answer, denied that the track was defective, that the switch was of a dangerous construction, that the yard master was careless or incompetent, or that the accident occurred by reason either of such track, such switch, such incompetent yard master, or because of the high rate of speed at which the train was going. The issue was referred to a master, who has found the facts:

The decedent, Fletcher B. Gray, was yard foreman in the Somerset yards. Fred Cook was the general yard master of the Somerset yards. On March 36, 1893, the yard was crowded with cars. The engineer of the switch engines-- Stokes--had gone home to his dinner. The yard master, Cook, being anxious to expedite the work, took charge as engineer of the switch engine during the absence of Stokes, and began doing work with it in the yards. The decedent, Gray, yard foreman, was assisting him in this work. One Garrett was acting as fireman on this switch engine with Cook. George T. Moon, who was then a freight conductor and one Melville Ramsey, who was then a switchman of the Southern, were assisting in this work. The switch-engine came from the north part of the Somerset yards to a point below the yard office, backing down, pushing one caboose and pulling two. The train was going at a rate of speed variously estimated by witnesses both for plaintiff and defendant at from 15 to 25 miles per hour. While going at this rate of speed, said Moon, Fletcher B. Gray, and said Ramsey were standing on the south end of the caboose, which was being pushed south by the engine over the main track, it being the caboose of said Moon, the freight conductor. Several days before the day of the accident, which occurred Sunday, there had been put in the yard two automatic switches. These switches were called automatic, not because they were expected at all times to work automatically, without being thrown by a switchman or employee of the road, but they were useful in cases of emergency or accident, and, in the event of a car or engine accidentally running into said switch, it was expected that the switch would throw itself, and thereby prevent a derailment, or damage to the switch or track. They were not switches either new or novel in construction, although they were never before in that yard, but switches which had been in use on other roads for years past, and were known to be good standard switches. This switch, it was intended, should be handled by the switchman as other switches were. It was not a labor-saving device in the sense that it did not have to be moved by a switchman, but it was intended to prevent derailments in case the switch was misplaced. Mr. Felton, the receiver, states that they were never intended to be used automatically in the regular service. It was only in case of emergency that the automatic switches were expected to be brought into play at all. While this train of which the yard master was acting as engineer was thus proceeding southwardly along the main track, this automatic switch was set so that, if it did not work automatically, or was not thrown by a switchman, the train would continue, not along the main track, but would be switched off on a side track to the left (that is, the east side of the main track), where a few feet distant from the switch, other cars were standing. The train, without slackening speed, ran into this switch, and immediately the caboose left the track, and collided with the cars on the side track, killing Gray, and causing a wreck of the engine, of the caboose it was pushing, and of the two cabooses the engine was pulling. * * * The evidence clearly shows, as heretofore stated, that the switch was intended to act automatically only in case of emergency. Although it had not been oiled I believe it was in such condition that there would have been no difficulty for any employe or servant of defendant to throw the switch. It is also probable that the switch might have thrown itself, provided the cars had not been running at such high rate of speed, but, going at such high rate of speed and with a caboose in front, which is many tons lighter than an engine, I believe the switch would not have thrown itself, whether oiled or not. The switch was not intended to be run through in this matter, oiled or not oiled, and I cannot conclude from the evidence that the switch would, under the circumstances, have worked automatically, and thrown itself, even if oiled. The negligence, therefore, if any, consists not in failing to oil the switch, but in using it in a way for which it was not intended. It is contended in behalf of plaintiff that the men in the yard were informed by the yard master, Cook, that this automatic switch did not have to be thrown by the men, but that the trains or cars themselves could throw the switch, and that during the two or three days that the switch was in operation the men so believed, and acted on that belief; and from all the evidence on this point I am clearly of the opinion that Cook, the yard master, did not only believe that the switches were intended to be used without having the men themselves throw them, but that he did so use the switches, and informed the men under his charge that they were to be so used, himself setting them the example. Therefore, as I view the case, the whole question of the liability of defendant is determined by the fact of whether or not Cook, the yard master, was a fellow servant of Gray, the decedent. The evidence discloses that Somerset was what is known as a 'division terminal.' It is the half-way point between Cincinnati and Chattanooga, and it is at this point where trains are made up to go both north and south. The yards are shown by the evidence to be very large. One of the witnesses testifies that 15 to 20 miles an hour, the rate at which this train was going, was not too high rate of speed, as they were going from the north to the south end of the yard which was 'something like half a mile.' It was over these large division terminal yards that Cook was general yard master. As to the power and authority given to and exercised by him in this capacity, Mr. Felton testified: 'Q. You spoke of the yard master as one of the officers of the company, classing him with the superintendent, and I forget what other officer. Over what employes has he authority as an officer of the company? A. The yard-master has charge of the yard and the yard crews and the train crews, while in the yard limits. He has entire charge of the operating of the yard.' The rules of the company in force at the time of the accident relating to the yard master's duties were as follows: By rule 134, as yard master, Cook had charge of the yards where the trains are made up, the movements of trains therein, and the force employed. By rule 135 the yard masters are responsible for the prompt transportation of cars, and the prompt movement of all cars within the limit of their yards. They must be familiar with the rules of the freight service, and with the duties of every employe connected with freight trains, and will require the prompt and efficient discharge of those duties in the yards. By rule 139 they must not permit a train to start with an engineman, conductor, or brakeman who is under the influence of liquor, or unfit for duty. By rule 142 they must see that their cars are kept in good order, that cars are properly inspected, and that those requiring repairs are sent to the shop. One of the defendant's witnesses (Moon) tersely states the duties of the yard master as follows: 'All in the yard is subject to his orders.' Considerable testimony was taken on the question as to whether or not Yard Master Cook while acting as engineer, ought to obey signals such as decedent, Gray, might have given him while running the train. All this, however, I think is immaterial. Of course, such signals as to go ahead, or to back up, or to go slow, and the like would have to be given by the foreman, brakeman, or any other person on the train to the engineer operating the train; but his does not mean that the yard master is in any respect whatever deprived of that power and authority which he possesses as yard master. He is none...