Chicago & Alton Railroad v. McDonald

Wilkin, P. J. There are two theories upon which appellee’s cause of action is based, and they are set forth in the first and second counts of his declaration. There is' no evidence tending to support the third. There is no controversy of fact on the first count as to the allegation of negligence. Appellant concedes that whatever injury resulted to appellee by reason of the alleged accident was occasioned by the negligence of the engineer and conductor, or one of them; but maintains that they were fellow-servants with him at the time of the injury, and that therefore, in the absence of allegation or proof that it had failed to use due care in their selection, it is not liable. Appellee admits that by the law of this State this position is well taken, if the relation of fellow-servants existed, but he insists that as to the conductor, Culbertson, the evidence does not establish that relation. That the train in question was a construction train, and nothing more, is admitted; that the conductor, engineer, brakeman, fireman .and workmen, including the appellee, all belonged to it and worked together is also conceded. It is admitted by counsel for appellee, that under this state of facts, by repeated decisions of the Supreme" Court, the engineer, brakeman, fireman and workmen are held to be fellow-servants, engaged in the same branch of service, and hence the common master is not liable for any injury to one of them through the negligence of another; but they earnestly argue that the conductor sustains a different relation to the other employes connected with his train, and as to his negligent acts, the same rule should not apply. This position is not based on the theory that he and the shovelers are not consooiatech with each other, within the requirement of the rule announced in the Moranda and other cases decided by the Supreme Court. In fact, it is difficult to conceive how it could be maintained that he sustains a different relation to them, in that regard, from that of the engineer or brakeman. The ground upon which the distinction is- sought to be maintained is, that the conductor, being the superior officer of a train, and having the sole management and control of its movements, stands in the position of a vice principal, or as the “ personal representative of the corporation.” Whatever reason or authority may be adduced in support of this position, when applied to conductors of trains running on schedule time and under general rules, we do not consider it an open question in this State. T., W. & W. R. R. Co. v. Durkin, 76 Ill. 395 ; Clark v. C.,B. & Q. R. R. Co., 92 Ill. 43; Aben v. T. H. & I. R. R. Co,, 111 Ill. 210. Noris the reasoning in the case of C., M. & C. R. R. Co. v. Ross, 112 U. S. 337, and other cases, holding that certain superior employes of a corporation are to be held as vice principals, applicable to the facts in this case. It needs no argument to show that the position of a conductor in charge of a regular train is altogether different from that of one in charge of a mere construction train. The latter, as shown by the evidence in this case, acts under special orders at all times in the movement of his train, and is engaged in special service. On the first count the case is not distinguishable from that of the T. H. & I. v. Aben, supra, by fair construction and on that count the law must be held with appellant. The second count fails to specifically charge any act of negligence on the part of the train dispatcher, but alleges generally that the injury resulted through his neglect in permitting the two trains to come together, it being his duty to direct and control their movements. It is said in the argument that the evidence shows that he was guilty of negligence in failing to notify the conductor of the work train that Bo. 47 was late, and that omission caused or contributed to the-injury of appellee. The right to recover under this count is based on that theory. The only evidence tending to support this view of the case is that of Conductor Culbertson, given substantially, if not literally, in the foregoing statement. Railroad companies should be, and are by the law, held to a high degree of care and diligence in the adoption and enforcement of all needful rules and regulations to avoid collisions of trains, and if it can be fairly said from the evidence here, that the two trains in question were thrown together through the failure of appellant to provide for the government of its employes and officers such rules, its legal liability follows. And although there was no express rule of the company making it the duty of train dispatchers to notify those in charge of wild, or work trains, that regular passenger trains were late, yet if under all the circumstances proved such notice was reasonably necessary to prevent the collision, the failure of the dispatcher, who had control of the movement of all trains, to give it, would be negligence, and appc'lant liable. There is no pretense on the part of appellant that such notice was given, and therefore, by determining whether or not it was necessary, and whether or not the injury was the result of the failure to give it, we shall be able to settle the question of liability under the second count. In the absence of such notice, what were the rights and duties of the conductor of the wild train, and what had the train dispatcher a right to presume he would do? There can be, and there is, no dispute as to the fact that, by his working orders for that day and the general rules of the company, under which he says he was working, and which he fully understood, it was his duty to keep out of the way of Ho. 47, not only for the number of hours she was late, but as he says until he knew she had passed. He testifies : “Ihad to guard in and guard out. A man running a working train has to fight in and fight out.” It is true that an attempt is made in his redirect examination to confine his construction and understand, ing of the rules as to the rights of wild trains, to regular trains on time, but his testimony, all considered, bears no such con. struction and would be absurd if it did. A rule which would permit all wild or irregular trains to occupy the track against regular trains, whenever the latter were off their schedule time, Would be worse than nonsensical. These rules can not be so construed, nor did Culbertson so understand them. It is therefore clear that obedience to what he understood to be his plain duty, in the absence of notice or orders from the train dispatcher, would have prevented Culbertson’s moving his train on the main line, where the collision occurred, until Ho. 47 had passed; and up to the time the collision occurred the train dispatcher had no more reason to anticipate disobedience to the working order and rules of the company than he would have had for believing that a dispatch giving notice that 47 was late, would be disregarded if delivered to him. Again, did the failure to give notice of the fact that the passenger train was late, cause the accident? A direct answer to this question is found in the evidence of Culbertson. He swears: “ I would not have started out that evening if I had not seen or if one of my men had not seen Ho. 47 go by first; if we had not, then in the absence of any order I would have stayed there ; failing to get au order would not have caused the accident unless I thought 47 had passed.” It is true he states in another part of his testimony that if he had received the same telegram that Paine and Wright did, the collision would not have occurred; and that perhaps is true, not, however, because it was necessary in order to fix his duty in the premises, but because he would have believed the dispatch, rather than his engineer, or taken steps to verify the statement of the latter. There can be no doubt that whatever necessity there was for notice from the train dispatcher as to the delay of Ho. 47, arose from the false statement of the engineer, and that alone. The train dispatcher had ho knowledge of such false statement being made. It certainly can not be said that it was his duty to assume that false information would be communicated to Culbertson; or that he would act upon it if given. He had a right to presume that he would do his duty. That duty requiring him to keep out of the way of 47, until he knew it had passed, and such knowledge being within the power of Culbertson, beyond peradventure, the dispatch or notice as the facts then appeared was wholly unnecessary. Whether the true reason for sending orders to Paine and Wright and not to Culbertson, is given by the train dispatcher, or whether there existed any reason whatever therefor, is wholly immaterial. The mere fact that they had orders based on the fact that 47 was late, could in no sense change or affect the question of negligence in not notify, ing Culbertson. The authorities cited by counsel for appellee in support of the proposition that if, through the negligence of train dispatchers or other officials having charge and control of the movement 'of railroad trains, they are brought into collision, thereby causing injury to employes or others, the company will be liable, certainly announce a correct rule of law; but under the facts of this case they are wholly inapplicable. • In the case of Schuhan v. New York Central and Hudson River R. R. Co., 91 N. Y. 332, the reported facts show that train Ho. 337 was irregular, and west bound from Auburn. Ho. 50 was a regular train, going east from Cayuga. No. 337 was ordered to Cayuga, regardless of Ho. 50, but no notice was given to the latter. The two collided, injuring the fireman of Ho. 337. It was held that there was negligence ip not giving notice to Ho. 50. It need scarcely be said that the facts in that case and this are wholly unlike. There the officers in charge of the irregular train were acting in strict obedience to orders; here the conductor of the wild train in direct disobedience to his orders, and the general rules. The other cases cited are equally inapplicable. The evidence in this record fairly considered, must, we think, force any impaitial mind to the conclusion that the facts in appellee’s case are truly stated in the first count of his declaration, and not in the second. That his injury resulted from the negligence of the conductor, superinduced by the inexcusable carelessness or wilfulness of the engineer of the work train, aiid not by reason of any omission of duty on the part of the train dispatcher. Reversed and remanded.