Hoover v. Beech Creek R. R.

Per Curiam, The telegraphic order of the assistant superintendent of the Fall Brook Company’s Railway, to the conductor and engineer of the train No. 3, of which the deceased was brakeman, required them to “ wildcat to Newberry junction ahead of train 39 and report.” This order was delivered to the conductor of train No. 3, at Jersey Shore before leaving that station, and was notice to him to keep out of the way of train No. 39 next following. It was the duty of the men running train No. 3 to [364] look out for train No. 39, to keep out of its way, and to give whatever signals were necessary to prevent a collision. It was testified by Thomas, one of plaintiff’s witnesses, and conductor of No. 3 train that it was the usual custom to signal trains'approaching from behind at the place where this accident happened, especially on foggy nights, by going back on the track and placing caps on the rails, and that Hoover was just about to do this when the collision occurred, but waited a few minutes to fix his fires first. In those few minutes the collision took place. Now, if Hoover ought, as brakeman, to have put caps on the rails behind No. 3 as a signal to No. 39, and he failed to do so, the collision was" the result of his own negligence and there can be no recovery. If the conductor and engineer failed either to side track No. 3 or to give proper signals, the collision was the result of the negligence of Hoover’s co-employees, and in that event also there can be no recovery. The duty of avoiding any collision with No. 39 rested upon the men in charge of No. 3, and for the neglect of that duty by any. of them the defendant is not responsible. Judgment affirmed.