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The plaintiff, in his complaint, alleged that on the 7th day of December, 1892, while in the employ of the Northern Pacific Railroad Company as a brakeman, he received personal injuries of a severe character, occasioned by the negligence of the defendant company. The plaintiff recovered a verdict in the sum of $21,600, which was reduced, upon the election of the plaintiff to avoid a new trial, to the sum of $7,500, for which judgment was entered. The case was taken to the circuit court of appeals of the Ninth circuit, where the judgment of the trial court was affirmed. The case was then brought to this court on a writ of error to the judgment of the circuit court of appeals. 15 C. C. A. 52, 67 Fed. 881. The principal facts of the case are thus stated in the opinion of the circuit court of appeals:
By the shock caused by the collision of the two trains the plaintiff, who was acting as middle brakeman, was thrown from the car on which he was standing, and received severe injuries.
In the plaintiff's complaint it was alleged 'that the said defendant the Northern Pacific Railroad Company was guilty of carelessness and negligence in this: That the conductor of said first train well knew that said second train was following said first train, and failed to leave a flagman in the rear of said first train before and at the time said first train stopped at said Clyde Spur, to hold and stop said second train, as he was in duty bound to do; that the place where said collision occurred was on a mountain grade, and the said defendant the Northern Pacific Railroad Company was guilty of carelessness and negligence in allowing said second train to follow the first train closely, and was guilty of carelessness and negligence in running the second train into said first train, whereby the plaintiff was injured as aforesaid.' The defendant, answering, denied negligence on its part, and alleged that plaintiff's injuries were owing to and caused by his contributory negligence and by the carelessness and negligence of his [167 U.S. 48, 51] fellow servants. It is admitted in the brief of the plaintiff in error that the defense of contributory negligence on the part of the plaintiff was not made out, and the controversy resolves itself into the question whether the plaintiff's injuries were caused by the negligence of his fellow servants within the rule on that subject.
Before the trial, and on the application of the attorneys for the plaintiff, it was ordered that Thomas F. Oakes, Henry C. Paine, and Henry C. Rouse, the receivers of the defendant company, be, and they were thereby, made parties defendant in the action.
C. W. Bunn, for plaintiffs in error.
S. C. Hyde, for defendant in error.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.
At the close of the evidence the defendant moved the court to give the following instruction:
The refusal of the trial court to give this instruction was assigned for error in the circuit court of appeals, and the ruling of the latter court in affirming such refusal is complained of in the first assignment in this court.
This request assumes that there was no evidence of negligence on the part of the conductor of the first train sufficient to submit to the jury. The trial court said as to this question: 'The particular negligence charged against the railroad company [167 U.S. 48, 52] is that the conductor of the first train,-the one upon which the plaintiff was employed as a brakeman,-when he brought his train to a stop at Clyde station, neglected his duty by failing to place a flagman a sufficient distance back on the track to warn the following train, which is called the 'second train' in this complaint, of the danger of coming too close to that station while the first train was stopped there.' The circuit court of appeals made no observation on this part of the case. Both the courts discuss the case chiefly upon the question of the liability of the company arising out of the negligence shown in the management of the second train.
The counsel for the defendant in error contends, in his brief, that the conductor of the first train was guilty of negligence in not obeying the following rules of the company, put in evidence by the plaintiff:
It is difficult to perceive that these rules had any applicability to a case like the present. They seem plainly intended to meet the exigency of a train stopped by an accident or obstruction, or unexpectedly compelled to stop between stations. It can scarcely be supposed that their directions are to be followed every time a train stops at a station.
Moreover, in the present case, it appears, from the testimony of the plaintiff's witnesses that no time was afforded for the use of such precautions. The second train was following so closely that the collision took place almost at the instant the first train had come to a stop, and before the rear brakeman could do more than to signal with his lantern, and to call out. The conductor of the first train is not shown to have had any reason to suppose that the second train would run into him when stopping at a station, in utter disregard of the company's rules.
We are inclined to think that, if the plaintiff's case depended wholly on his being able to convict the conductor of the first train of negligence, there was not sufficient evidence adduced at this trial to have justified the trial judge in submitting the case to the jury on that issue.
It is, however, further contended on behalf of the defendant in error- and upon this the stress of the case is mainly put-that under the facts disclosed in the record the trial court was justified in submititng to the jury, and the jury in finding, that the defendant company was liable for the results of the negligence in the management of the second train. [167 U.S. 48, 54] There is no effort to call into question the numerous decisions of this court whereby it has been firmly established that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow servants in the course of the employment. Indeed, it is conceded in both the opinion of the circuit court of appeals (Railroad Co. v. Poirier, 15 C. C. A. 52, 67 Fed. 881) and in the brief of the defendant in error that the conductor of the second train was a fellow servant with the plaintiff, and that, if the collision was caused solely by his negligence, the defendant would not be liable.
The argument to maintain the liability of the defendant company, notwithstanding this concession, is based upon the evidence that tended to show that the second train was a 'wild train,' running on telegraphic orders, without any schedule or time table, and that the conductor of that train was not notified that the first train would stop at Clyde Spur.
One of the plaintiff's witnesses (Allen, the rear brakeman on the first train) testified that the second train was 'running by telegraphic orders, and had no schedule orders or time card.' This was doubtless true, as it is true of every 'wild' of extra train; but such a fact by no means warrants the inference drawn by the trial court and given in the charge to the jury that 'the train was running under special orders as to the time it was to make, where it was to go, and when it should reach the different stations.' It cannot be justly inferred from the mere fact that the second train was a 'wild train' that its conductor was relieved from obeying the laws of the company. Among those rules, put in evidence by the defendant company, is:
Assuredly, more evidence must be given than the mere fact that the second train was a 'wild' train, not running on schedule time, to justify an inference, by either court or jury, that the conductor was relieved by such fact from regarding the rules of the company regulating the running of its train. Nor does the statement of the conductor of the second train that he had not been notified that the first train was to stop at Clyde Spur show that he had any right to dispense with the rules. While he did say that he had not been notified that the first train would stop at Clyde Spur, he does not say that he did not know of such intention. At all events, it was clearly shown by the plaintiff's witnesses that the trains were in immediate proximity to each other at Vollmer, the last station before reaching Clyde Spur; that the second train followed the first so closely that the collision occurred almost immediately after the leading train had come to a stand; and that the rear brakeman, who saw the second train approaching before his own train had fully stopped, did not have time to warn his fellow brakeman, nor himself get to the ground, before the collision took place.
These facts disclose a palpable disregard by the conductor and engineer in charge of the second train of ordinary prudence and of the rules which it was their duty to observe. We see no ground for the assertion that their conduct was directed or controlled, in these particulars, by orders from some agent or dispatcher of the defendant company, 'clothed with the duty of sending out the second train, and having the control, management, and direction of its movements.' Such conjectures did not constitute evidence to be submitted to the jury.
Accordingly we think that the defendant was entitled to [167 U.S. 48, 56] have had the following instructions given to the jury: 'If the jury find from the evidence in this case that the accident which caused the plaintiff's injury was caused by the negligence of the conductor or engineer of the extra train in following the first train too closely, or by running down the grade at too high a rate of speed, or in not keeping the extra train in proper control, or by any other act or neglect of the conductor or engineer of the first train, then I instruct you that the defendants are not liable, and that you shall return a verdict for the defendants.' But this prayer was refused.
So, too, we think the following instruction asked for should have been given: 'In determining the question of whether the defendant the Northern Pacific Railroad Company was guilty of negligence in the management of their trains, or either of them, the jury are instructed that they may consider the rules of the company, which have been read in evidence; and that, if it appears therefrom that the running and conduct of this second train was provided for, and that the accident was caused by the engineer or conductor of the second train in disregarding such rules, then your verdict must be for the defendants.' This instruction was modified by the court adding the following words: 'Unless it appeared that the conductor of the train, or some one under whose orders he was acting, had authority in the special case to deviate from the rules.' This modification was not warranted by any evidence disclosed in this record. The only orders shown, controlling the conductor and engineer in the management of the second train, were those contained in the rules of the company. As we have already said, to instruct the jury that they might infer, from the mere fact that the second train was a 'wild' train, not running by schedule time, that some one in authority had dispensed with the rules in this special case, was to submit mere matter of conjecture as evidence on which they might base a verdict.
The same error vitiates portions of the general charge, which were duly excepted to and assigned for error; but we do not deem it necessary to discuss those assignments in detail. They are disposed of by the observations already made. [167 U.S. 48, 57] Upon the whole, we are of opinion that, giving to the plaintiff's evidence its utmost effect, it did not make a case which should have been submitted to the jury.
The judgment of the circuit court of appeals is reversed. The judgment of the circuit court is likewise reversed, and the cause is remanded to that court with directions to set aside the verdict, and award a new trial.
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