Union Pac. Ry. Co. v. Callaghan

• Decision Date: 10 July 1893
• Docket Number: 248.
• Citation: 56 F. 988
• Parties: UNION PAC. RY. CO. v. CALLAGHAN.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 988

UNION PAC. RY. CO. v. CALLAGHAN.

No. 248.

United States Court of Appeals, Eighth Circuit.

July 10, 1893

Statement by SANBORN, Circuit Judge:

On the 18th day of August, 1890, a repair train operated by the Union Pacific Railway Company, the plaintiff in error hereafter called the defendant, fell through a defective bridge, and James Callaghan, the defendant in error hereafter called the plaintiff, who was riding upon it, was injured. He sued the defendant for negligence in the operation of this train, and recovered judgment upon the verdict of a jury, and it is to reverse this judgment that this writ of error was sued out. The train was running from the city of Trinidad to the town of Trinchera, in the state of Colorado. It consisted of five flat cars, loaded with timbers to be used in repairing bridges on the road over which it was running, three box cars, and a caboose. Heavy storms had prevailed during the week preceding the accident had caused extensive washouts, and had damaged the roadbed and bridges, so that none but repair trains had passed over this railroad between Trinidad and Trinchera for three days. The plaintiff was section foreman on a branch railroad which extends from Trinidad to Sopris. On August 17th he was ordered by defendant's superintendent to take all the men on his section, and assist in repairing the main road between Trinidad and Trinchera. He boarded the repair train, which was in charge of one De Remer, at Trinidad, and at 5 P. M. on that day the train left that place for Trinchera. It proceeded slowly through the night. The track foreman and De Remer walked with a lantern in front of the train a large portion of the night. Before morning they found one bridge washed out and another rendered dangerous by floods, and repaired them. The bridge where the accident occurred was about one-half mile north of Trinchera and three miles south of Adair, which was a station on this railroad. Fifteen feet of the bank on each side of this bridge had been washed away so that it was not safe for trains to go over it. The section foreman of the section in which the bridge was situated had discovered its condition the day before the accident, and had caused the usual danger signal--a red flag--to be placed in the space between the rails about 700 feet north of the bridge. When this repair train reached Adair it was running about 15 miles an hour. The foreman of this section was at the station of Adair. He signaled the train to stop, and if it had stopped he would have informed the men in charge of it of the condition of the bridge, and of the danger from it. The engineer saw his signal, responded to it, and slackened the speed of the train to about four miles an hour, when the conductor signaled him to go ahead, and he went on before the section foreman could give any information to the men upon the train.

One of the rules of the defendant is: 'In case of an extraordinary rain storm or high water, trains must be brought to a stop, and a man sent out to examine bridges, trestles, culverts, and other points liable to damage, before passing over. Conductors will make careful inquiry at all stopping places, and, when thought advisable, make extra stops, to ascertain the extent and severity of storms, taking no risk.'

The bridge was visible and its condition apparent for about 900 feet north of it on the railroad, but the engineer apparently saw neither the flag nor the damage to the bridge, but drove his train upon it, and the car on which the plaintiff was riding went through it, and injured him.

The court charged the jury that, if the plaintiff's injury was caused by the negligence of the engineer alone, he could not recover, because the latter was his fellow servant; but if the negligence of the conductor in refusing to stop at Adair, or in failing to stop the train before entering upon the bridge, contributed to the injury, the defendant was liable for the damages. All the errors assigned may be fairly said to relate to the last clause of this instruction.

Willard Teller, (H. M. Orahood, E. B. Morgan, and J. M. Thurston, on the brief,) for plaintiff in error.

W. H. Bryant, (C. S. Thomas and Bryant & Lee, on the brief,) for defendant in error.

Before SANBORN, Circuit Judge, and SHIRAS and THAYER, District Judges.

SANBORN Circuit Judge, (after stating the facts.)

Under the decision of the supreme court in Railroad Co. v. Ross, 112 U.S. 377, 5 S.Ct. 184, it must be held that, so far as this plaintiff was concerned, the conductor of this train was the defendant's vice principal, and that the railway company was liable for any damage to the plaintiff caused by his negligence.

It is also well settled that a master is liable for an injury to a servant which is caused by his own negligence and the concurrent negligence of a fellow servant. Railway Co. v. Cummings, 106 U.S. 700, 702, 1 S.Ct. 493; Harriman v. Railway Co., 45 Ohio St. 11, 32, 12 N. E. Rep. 451; Lane v. Atlantic Works, 111 Mass. 136; Griffin v. Railroad Co., 148 Mass. 143, 145, 19 N. E. Rep. 166; Cayzer v. Taylor, 10 Gray, 274; Elmer v. Locke, 135 Mass. 575; Booth v. Railroad Co., 73 N.Y. 38; Cone v. Railroad Co., 81 N.Y. 206.

But in every such case the negligence of the master must be the proximate cause of the injury, and the burden is on the plaintiff to prove such acts of carelessness on his part as constitute the immediate cause of the accident. No act contributes to an injury, in the legal acceptation of that term, unless it is a proximate cause of that injury,--unless it is near to it in the order of causation. Jacobus v. Railway Co., 20 Minn. 125, 134, (Gil. 110.)

The court below carefully instructed the jury that the plaintiff could recover only in case they found (1) that the conductor failed to exercise ordinary care in refusing to permit the train to stop when signaled at Adair, or in failing to stop it before it entered upon the bridge, and (2) that this negligence was the cause of the injury; but that, in case they found both of these issues against the defendant, they might render a verdict for the plaintiff. The contention of the defendant is that it conclusively appears from the evidence that the accident was not the natural and probable consequence of the negligence of the conductor, but that the subsequent carelessness of the engineer, who failed to see the danger signal on the track or the damage to the bridge, and failed to stop his train before he drove upon it, was an independent intervening cause which the conductor could not have anticipated, and from which the accident in reality resulted. They urge that the conductor's order to proceed at Adair was only a direction to the engineer to proceed slowly and carefully, to stop before passing any bridges or trestles, so that a man could be sent out to examine them, and generally to proceed carefully according to the rules of the company; and they insist that the conductor could not have anticipated that the engineer would commit a breach of his duty, violate the rule in evidence, and dash upon the bridge without stopping to examine it. This argument is persuasive, and worthy of consideration.

In Railway Co. v. Elliott, 55 F. 949, we had occasion to consider the rule of law here invoked, and there said:

'An injury that is the natural and probable consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable; nor is an injury that is not the natural consequence of the negligence complained of, and that would not have resulted from it but for the interposition of some new independent cause that could not have been

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