Wallace v. Boston & M. R. R.

• Decision Date: 05 April 1904
• Citation: 72 N.H. 604,57 A. 913
• Parties: WALLACE v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

57 A. 913

72 N.H. 604

WALLACE

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Belknap.

April 5, 1904.

Transferred from Superior Court.

Case for negligence by Samuel Wallace against the Boston & Maine Railroad. A nonsuit was ordered at the close of plaintiff's evidence, subject to plaintiff's exception, and the case was transferred to the Supreme Court. Exceptions sustained.

The plaintiff was head brakeman on the defendants' north-bound regular freight train known as "No. 265," on September 14-15, 1900, and was injured in a head-on collision between it and a south-bound extra freight train, known as "Freight Extra 460," about half a mile north of the Weirs Station. The following orders were sent to each train by the train dispatcher from his office at Woodsville: Order No. 56: "No. 265, two sixty-five, and freight extra 460, four sixty, will meet at Lakeport." Order No. 59: "No. 265, two sixty-five, and freight extra 460, four sixty, will meet at Weirs instead of Lakeport." Order No. 61: "Order No. 59 is annulled." The orders for train No. 265 were all addressed to the conductor and engineer of the train, and were sent to Lakeport. Order No. 56 was marked O. K. at 10:10 p. m. on September 14, No. 59 at 11:40, and No. 61 at 11:48. The train was stopped at Lakeport by a red signal, and the conductor and engineer read and signed the orders. Their signatures were telegraphed to the train dispatcher, who made the orders "complete"— No. 56 at 11:55 p. m., and Nos. 59 and 61 at 11:56—by one message applying to both. Shortly after this the conductor and engineer took the three orders, and started their train, intending to run to Plymouth without a stop. The orders for freight extra 460 were addressed to the conductor and engineer; No. 56 being sent to Plymouth, and Nos. 59 and 61 to Meredith. No. 59 was marked O. K. at 11:37 p. m., and No. 61 at 11:45. The train was stopped at Meredith by a red signal, and the conductor and engineer found order No. 59 awaiting them. They signed it, and their signatures were telegraphed to the train dispatcher. When order No. 61 arrived, they signed it, and their signatures were telegraphed to the train dispatcher, who made Nos. 59 and 61 "complete" by one message applying to both. Shortly after this the telegraph operator gave them order No. 61, and a few minutes later order No. 59, the latter having upon its face the words, "Annulled by order No. 61," written thereon after the orders were signed. The conductor and engineer took the orders, and, the red signal having been taken in, they started with the intention of running to Lakeport without a stop. The collision occurred shortly afterward. The negligence alleged was (1) that the train dispatcher blundered in sending the orders; (2) that the rules relating to the running of trains were ambiguous and confusing, and consequently unreasonable; and (3) that there was no telegraph office open between Lakeport and Meredith when the orders were given.

The following rules of the defendants were in evidence:

"1. (b) Employés must be conversant with and obey the rules and special instructions. If in doubt as to their meaning, they must apply to proper authority for an explanation."

"26. (b) A red flag or a red light shown at telegraph stations signifies that orders are awaiting the train. Conductors and engineers must repair to the telegraph office before doing other work. * * * Under no considerations must a train or engine pass these signals without getting a train order or a clearance showing for what the signal is displayed."

"106. In all cases of doubt and uncertainty, take the safe course and run no risks."

"201. Special orders directing movements [of trains] varying from or additional to the time-table will be issued by the authority and over the signature of the superintendent, train dispatchers adding their own initials. * * * They must be brief and clear, and the prescribed forms must be used when applicable.

"202. Each order must be given in the same words to all persons or trains directly affected by it, so that each shall have a duplicate of what is given to the others.

"203. Orders shall be numbered consecutively for each day as issued, beginning with No. 1 at midnight.

"(a) Orders must be plain and explicit, and if not fully understood, an explanation must be required before accepting the same. After the reception of an order, it must be obeyed fully.

"204. Orders must be addressed to those who are to execute them, naming the place at which each is to receive his copy. Those for a train must be addressed to the conductor and engineman. * * * A copy for each person addressed must be supplied by the operator."

"208. Meeting orders must not be sent for delivery to trains at the meeting point, if it can be avoided. When it cannot be avoided, special precautions must be taken by the train dispatchers and operators to insure safety. There should be at least one telegraph office between those at which opposing trains receive meeting orders.

"After 'O. K.' has been given and acknowledged, and before 'complete' has been given, the order must be treated as a holding order for the train addressed, but must not be otherwise acted on until 'complete' has been given."

"210. When an order has been transmitted, preceded by the signal '31,' operators receiving it (unless otherwise directed) repeat it back at once from the manifold copy, and in the succession in which their several offices have been addressed. Each operator repeating must observe whether the others repeat correctly. After the order has been repeated correctly by the operators required at the time to repeat it, the response 'O. K.,' authorized by the train dispatcher, will be sent simultaneously to as many as practicable, naming each office. Each operator must write this on the order, with the time, and then reply 'i O. K.,' with his office signal. Those to whom the order is addressed must sign their names to the order, the lowest copy to be retained by the operator, and he will send their signatures to the superintendent. The response 'complete,' with the superintendent's name, will then be given, when authorized by the train dispatcher. Each operator receiving this response will then write on each copy the word 'complete,' the time, and his name in full, and will then deliver a copy to each person included in the address; and each must read his copy aloud to the operator. Conductors will read the order to their baggage masters and brakemen, and enginemen to their firemen, and know that they understand them."

"217. (a) A train must be governed strictly by the terms of orders addressed to it, and must not assume rights not conferred by such orders. In all other respects it must be governed by the train rules and time-tables."

"220. Orders once in effect continue so until fulfilled, superseded, or annulled.

"221. A signal must be used at each train-order office, which shall display red when trains are to be stopped for orders. When an operator receives a signal '31 for——,' he must immediately display red and then reply 'red displayed for ——,' and sign his name. The signal must not be removed until the object for which red is displayed is accomplished. When red is displayed, all trains must come to a full stop, and must not proceed without receiving an order addressed to such train, or a clearance card on a specified form, stating over the operator's signature for what the signal is displayed." "Form A. Fixing meeting point for opposing trains: '—— and ——will meet at ——' * * *

"Trains receiving this order will, with respect to each other, run to the designated point, and having arrived there will pass in the manner provided by the rules."

"Form L. Annulling or superseding an order: 'Order No.——is annulled.' This will be numbered, transmitted, and signed for as other orders. If an order which is to be annulled has not been delivered to a train, the annulling order will be addressed to the operator, who will destroy all copies of the order annulled but his own, and write on that, '—— annulled by order No. ——.'

"An order superseding another may be given, adding 'This supersedes order No.——,' or adding 'Instead of——.' An order that has been annulled or superseded must not be again restored by special order under its original number."

Evidence offered by the plaintiff upon the following points was excluded, subject to exception: (1) That the conductor and engineer of the downtrain put a construction upon the rules relating to the running of trains different from that put upon them by the conductor and engineer of the uptrain; (2) that the operator at Lakeport after a discussion as to the effect of the orders, asked the train dispatcher whether any orders were outstanding against No. 265, and the latter replied "No"; (3) conversations between the trainmen and the operators at Meredith and Lakeport as to the effect of the orders; (4) that a number of times before the accident the conductor and engineer of freight extra 400, after signing orders, had asked the operator for them, and had been told that they were annulled, and the red light was thereupon taken in, and they went on, but there was no claim that this had occurred frequently enough to amount to a custom, nor that the defendants knew of the occurrences.

The telegraph office at Weirs was the only one between Lakeport and Meredith, and it was not kept open nights after September. After freight extra 460 was reported to the train dispatcher as having left Meredith, he tried to get the Weirs office, hoping that the operator might chance to be within hearing. The accident might have been avoided if the office had been open. It was marked as a night office on the time-table then in force.

Shannon & Young and Charles B. Hibbard, for plaintiff.

Jewett & Plummer and Streeter & Hollis, for defendant.

CHASE, J. The train dispatcher's final decision was to have train No. 265 and freight extra 460 meet at...