Wheatley v. Philadelphia, W. & B.R. Co.

• Decision Date: 16 November 1894
• Citation: 30 A. 660,15 Del. 305
• Parties: HANNAH WHEATLEY v. PHILADELPHIA, WILMINGTON & BALTIMORE RAILROAD COMPANY
• Court: Delaware Superior Court

30 A. 660

15 Del. 305

HANNAH WHEATLEY v. PHILADELPHIA, WILMINGTON & BALTIMORE RAILROAD COMPANY

Superior Court of Delaware, New Castle County

November 16, 1894

New Castle County, October Term, 1894.

This was an action brought by Hannah Wheatley, the widow of William B. Wheatley, to recover damages for the death of her late husband, caused as she alleges by the negligence of the defendant company.

The material facts proved by the plaintiff are substantially as follows:

William B. Wheatley died from injuries received in a collision of freight train No. 17, with the Norfolk Express passenger train No. 97, at Porter's Station, on the Delaware Division of the P., W. & B. R. R., on the morning of the 23rd day of August, 1893. Both trains were schedule trains southbound from Wilmington to Delmar and used in operating the Delaware Division. No. 97 was of superior class and had the right of way. Both were equipped with engineer, fireman conductor and brakemen.

William B. Wheatley, the deceased, was the fireman on express train No. 97, and James A. Grubb, was the engineer. George W Calaway was the rear brakeman of train No. 17 and as such the flagman thereof. On the night of August 22nd, 1893, owing to an accident at St. Anne's Crossing and an unusual number of peach trains, the north bound trains numbers 94 and 96 on the same division were several hours behind time, and the Newark "Y" was somewhat obstructed with peach cars for through trains.

Train No. 17 left Wilmington about ten o'clock on the night of that day, stopping at New Castle and Bear Station on the way down to shift cars, reaching Porter's Station about midnight As it approached Porter's Station, it was stopped by the red light on north distance signal which is 1000 feet north of the Delaware City railroad crossing. South of that signal it was again stopped by a red lantern swung at or near the north end of the station platform. Again it was stopped at the station by the target red light for orders and was there ordered to switch off on the Newark "Y" and thereby give clear way to the express train No. 97 then about due. When the train stopped above the north distance signal, Calaway, the flagman, threw out a fuse, and when the order was given to switch off the train on the "Y" he went back a hundred yards or more to the rear of his train with his red lantern to protect the rear of his train from collision with the approaching Norfolk Express No. 97. He remained here until he thought his train had gotten off on the "Y" clear of the main track. Acting on that belief, he left his post of warning and went over to the rear of his train on the "Y." At the time he so left his post of warning, the following express train No. 97 was due at Porter's Station. Calaway's train in fact had not gotten clear of the main track, the engine, tender and two cars were still on that track when express No. 97, without notice of danger, with open throttle at full speed, dashed into the second car from the engine of train No. 17, with such force that the locomotive of the express train was hurled over backward and Wheatley, its fireman, was so injured in the wreck that he died the same day.

Under the rules of the Company, it was the duty of George W Calaway, the rear brakeman and flagman of train No. 17, when his train stopped, immediately to go back with danger signals to stop train No. 97 moving in the same direction and at a point 600 yards from the rear end of his train, to place one torpedo on the rails; then back 1,200 yards from the rear of his train, and place two torpedoes on the rails ten yards apart; then to return to a point 900 yards from the rear end of his train, and there remain until recalled by the whistle of his engine; but if the train No. 97 was due within five minutes, then to remain at his post until that train arrived, even though he should be recalled by the whistles of his engine.

Calaway testified that he did not place the torpedo as required by the rules, and that he did not go back 900 yards from the rear of his train and remain there until train No. 97 had arrived, although he was well acquainted with the rules and knew that it was his duty to do so; but that he left his place of warning, and went to the rear of his own train, without giving the danger signal, upon the supposition or belief that his train was safely off on the "Y."

James A. Grubb, the engineer of express No. 97, testified that if the danger signal required by the rules had been given by Calaway, his train would have been stopped immediately. That no such signal was given.

It was proved that the distance signals at Porter's Station, one of which is located 1,000 feet north of the Delaware City crossing, and the other the same distance south of the crossing, were used only for the purpose of indicating the condition of the Newark and Delaware City Railroad, which intersects the Delaware Division at this point. That the target signal, which is located at the Station, is used only to stop trains for orders. It was further proved that each train when it went out carried with it the appliances and means, for giving signals of danger to an on-coming following train, whenever it might be stopped on the track at stations or elsewhere from any cause whatever--consisting of fuses and torpedoes to be used upon the track and the red danger signal lantern, all of which were to be used by the rear brakeman or flagman of the obstructing or stopped train, and further, that such peculiar use of these respective signals was well known to the railroad employees, and governed them in the movement of their trains.

Upon this evidence the plaintiff rested his case.

Verdict for the defendant.

Massey, for the defendant, moved for a non-suit, upon the ground that the only negligence proved in the case, either expressly or by reasonable legal inference, was that of George W. Calaway, whom they claim was a fellow servant with Wheatley, for whose negligence the defendant company cannot be held liable.

The doctrine that a master is not liable for an injury which is caused by the negligence of a fellow servant is frequently said to have been originated by Lord Abinger in Priestley vs. Fowler, 3 M. & W. 1. But the rule was not laid down in that case, though it was the necessary result of that decision. I contend that it had its origin in an American court, having been first distinctly stated in 1841 in Murray vs. S. C. R. R. Co., 1 McMullan 385, where a fireman was injured by the negligence of an engine driver and the company was held not liable. In 1842 came the decision of Farwell vs. B. and W. R. R. Co., 4 Metc. 49, in which the celebrated judgment of Shaw, C. J., was delivered, a case probably more cited in England than any other American case. The rule was not applied in English courts until 1850, in Hutchinson vs. Y. N. & B. Ry. Co., 5 Excheq. 343. The rule as laid down by Shaw, C. J., was approved and affirmed in this state in Flinn vs. P. W. & B. R. R. Co., 1 Houst. 496, 505.

The simple question in this case is whether Wheatley and Calaway were fellow servants within the meaning of the settled rules applicable to such cases. Wheatley was the fireman on one train, Calaway the flagman on another, both under the employ of the same company and engaged in the operation of its trains. The general rule is that when the master has selected proper and competent persons to do the work, and has furnished them with adequate materials and resources, he has performed his duty, and if, by reason of negligence of a person so selected, a workman is injured, it is not the negligence of the master; 2 Thomp. Neg. 1026; St. Louis, I. M. & S. Ry. Co. vs. Needham, 63 F. 107; Miller vs. So. Pac. R. R. Co., 20 Ore. 297; Rose vs. Boston & Albany R. R. Co., 58 N.Y. 217, 221; Randall vs. Baltimore & Ohio R. R. Co., 109 U.S. 478, 482; Chicago, Milwaukee & St. Paul R. R. Co., vs. Ross, 112 id. 377; B. & O. R. R. Co. vs. Baugh, 149 id. 569; Northern Pacific R. R. Co. vs. Hambly, 154 id. 349; Bailey, Master's Liability 229.

The question whether workmen are fellow servants depends upon the nature of the act in the performance of which an injury arises without regard to the grade or rank of the employee; Hutchinson vs. Y. N. & B. Ry. Co., 5 Excheq. 243; Waller vs. South Eastern Ry. Co., 2 Hurlst. & Colt 102; Morgan vs. V. of N. Ry. Co., 5 B. & S. 570; Bailey, Master's Liability 327.

The function of the court is clearly distinguishable from that of the jury. Whether negligence can be imputed is a question for the court. Whether it ought to be imputed is a question for the jury. In this case, as a matter of law, there is nothing from which negligence can be imputed; Randall vs. B. and O. R. R. Co., 109 U.S. 478, 482; Pleasance vs. Fant, 22 Wall. 122; Patterson, Ry. Accident Law 448.

John Biggs, for the plaintiff.

I. Calaway was not a fellow servant of Wheatley. It is impossible to reconcile the decisions, but the principle that runs through them all is that the nature of the service is the criterion. If duties are delegated that belong to the principal then the person to whom they are delegated becomes a vice principal; 2 Thomp. Neg. 1,026; Little Miami R. R. Co. vs. Stevens, 20 Ohio 416; Darrigan vs. N. Y. and N. E. R. R. Co., 52 Conn. 285; Cooper vs. Pittsburg R. R. Co., 24 W.Va. 37.

Employees thus held to be vice principals are section boss; Louisville R. R. Co. vs. Bowler, 9 Heisk. 866; car repairer in charge of repairs; Moore vs. Wabash R.R Co., 85 Mo. 588; conductor with respect to men working under his immediate orders; Chicago, etc., R. R. Co. vs. Lundstrom, 16 Neb. 254; boss car repairer; Hannibal and St. Joseph R. R. Co. vs. Fox, 31 Kan. 586; foreman of a gang to unload a vessel; Brown vs. Sennet, 68 Cal. 225; a mate...