Virginian Ry. Co. v. Linkous

• Citation: 235 F. 49
• Decision Date: 08 July 1916
• Docket Number: 1379.
• Parties: VIRGINIAN RY. CO. v. LINKOUS.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

235 F. 49

VIRGINIAN RY. CO. v. LINKOUS.

No. 1379.

United States Court of Appeals, Fourth Circuit.

July 8, 1916

In Error to the District Court of the United States for the Western District of Virginia, at Roanoke; Henry Clay McDowell, Judge.

On rehearing. Former opinion (230 F. 88, 144 C.C.A. 386) reversing judgment below, adhered to.

H. T Hall, of Roanoke, Va., and G. A. Wingfield, of Norfolk, Va for plaintiff in error.

W. L Welborn and S. H. Hoge, both of Roanoke, Va. (Welborn & Jamison and Hoge, Williams & Darnall, all of Roanoke, Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD, Circuit Judge.

The above-entitled cause was decided at the November term, 1915, of this court, the court holding that the defendant in error, under the circumstances, was not entitled to recover. A petition for rehearing was presented December 25, 1915, and the case was reargued at this term.

Having fully discussed the question as to whether the injury of the defendant in error was due in whole or in part to the negligence of a fellow servant, in the opinion hereto fore announced, we do not now deem it necessary to enter into a further discussion of that phase of the case. After a careful consideration of the contention of counsel for defendant in error, as well as the authorities cited, we think that the decision of this court in the first instance was correct.

Therefore we adhere to our former opinion, reversing the lower court.

WOODS Circuit Judge (dissenting).

In this action, brought under the federal Employers' Liability Statute (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, Secs. 8657-8665)), the plaintiff recovered judgment on account of the death of her husband, J. M. Linkous, an engineer on one of the defendant company's trains. The negligence of the engineer was admitted, and the sole question is whether the District Court should have directed a verdict for the defendant on the ground that there was no proof of negligence of the other servants of the defendant contributing as a proximate cause to the death of the decedent.

There is practically no dispute as to the facts. When extra train No. 468, on which Linkous was engineer, reached the station Alta Vista, copies of a written telegraph order to meet and pass another freight train, No. 33, at t he station Keever, were given to the conductor and the engineer. The order was in plain language, not easily misunderstood, and the surviving brakeman testified that he and the conductor spoke to each other of the order to pass No. 33 at Keever. The presumption is that the conductor and the engineer, in accordance with the rules of the company, showed or made known the order to the brakeman and fireman. Looney v. Metropolitan Railroad Co., 200 U.S. 480, 26 Sup.Ct. 303, 50 L.Ed. 564.

After receiving the order, the conductor and one brakeman got on the engine with the engineer and fireman, leaving one brakeman in the shanty car at the rear end of the train. The order to stop at Keever was disregarded; there was a head-on collision with No. 33 about 2,500 feet beyond the east end of the switch where No. 468 should have been stopped; and the four men on the engine were instantly killed. Copies of the order were found on the bodies of the conductor and engineer.

A number of rules of the Railroad Company were introduced, but these seem to be chiefly relied on by the plaintiff:

'Instructions to Conductors and Enginemen:

'Rule 105. Both conductors and enginemen are responsible for the safety of their trains, and, under conditions not provided for by the rules, must take every precaution for their protection.'

'Instructions to Conductors:

'Rule 451. Enforce the rules applicable to all other employes on the train, reporting any insubordination, misconduct, or neglect of duty.

'Rule 457. When assigned to a train, take entire charge of it and of all persons employed thereon, until it is finally set off from the main track at the terminal station.'

'Instructions to Enginemen:

'Rule 701. Obey orders of the conductor as to starting, stopping, switching cars, speed and general management of train, unless such orders endanger the safety of the train or would require the violation of the rules or cause injury to company property.'

The following bulletin was issued by the superintendent:

'All Concerned:

'At all stations where a train is required by the rules or train order to meet or wait for an opposing train, the engineman will give one short sound of the whistle immediately after whistling for the station.

'In event of failure on the part of the engineman to give the prescribed signal, trainmen will take whatever steps are necessary to prevent the train from passing the station.'

From this statement it is evident that the four men on the engine knew of the order to stop at the east end of the switch at Keever and that it was the duty of all of them to be on the lookout for the stopping place. They knew in abundant time to stop the train and avoid the collision that the stop ordered had not been made. They knew before reaching Keever of the failure to slow down in proper time, and that the train was going by. All of them well knew, as reasonable men, of the almost certain death which would result from disregard of the order. There is no living witness of what took place on the engine or of the reason for going by, but it is impossible to believe that the train would not have been stopped had any one of the four men remembered the order. None but a mad engineer would have gone on had he been reminded of the order, and none but a mad conductor, brakeman, or fireman would have allowed him to go on had the order been remembered. Memory and attention fail much more readily and frequently than the instinct of...