Santa Fe Pac. R. v. Holmes

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is the contention of the plaintiff in error that the orders given hy the train dispatcher, together with the regular time schedules and the rules and regulations of the company, known and understood by the crews of both trains, were sufficient, if observed, to have insured the safety of all concerned, and that the accident was the result of the failure of train No. 3 to observe said time schedule and rules and regulations in connection with the special orders, in that it passed Yucca two minutes ahead of time, and Franconia six minutes ahead ■of time; that there was no evidence to go to the jury tending to show [68] negligence on the part of the plaintiff in error; and that its motion for nonsuit should have been granted by the court. It is argued' that, although the train dispatcher was advised that train No. 3 had passed Yucca two minutes ahead of its passing time for that station, the circumstances did not make it his duty to send additional orders to that train, he having previously promulgated orders sufficient to have insured the safe operation of both trains had such orders been obeyed, and that, having once given proper and sufficient orders in the premises, the duty of the master to the employé had been fulfilled; and, further, that the violation of the orders by the conductor and engineer of train No. 3 was an act, not of the plaintiff in error, but of the fellow servants of the defendant in error, for which the former is not liable. It is assigned as error that the trial court erred in holding that it was the imperative duty of the railroad company to have attempted to enforce obedience to order No. 23 by ordering train No. 3-to stop at Franconia. The finding of fact of the trial court must stand as the verdict of a jury if there was any evidence whatever to sustain them. We cannot say, on examining the evidence in the bill of exceptions, that there was no evidence of negligence on the part of the plaintiff in error. The trial court found that “train No. 3, which should' have passed Yucca at 4:57, did so at 4:55, and that Train Dispatcher Moore was notified of that fact in time to have stopped said train at Franconia,” and was of the opinion that in failing to so act he was-negligent. Under the circumstances it would seem that ordinary prudence required of the train dispatcher that he fix a point of meeting of the trains; but, whatever may have been his duty in that regard,, we think there was evidence of his negligence in the fact that, after he-was advised that train No. 3 passed Yucca two minutes ahead of its time, and was running in violation of his orders, he failed to send orders-to have that train stopped at Franconia. He had 12 or 13 minutes-within which to make that order. He knew that No. 3 was running in advance of its schedule time, whether because of willful violation of' the rules and orders or because on the downgrade track by these stations it had become uncontrollable, or because the engineer’s watch was-running slow; and he must have known that, if such violation of orders continued, there wrould probably be a collision. The engineer of' train No. 3 testified that according to his watch he left both Yucca and Franconia on schedule time, and according to the orders. . It may be that the error of the train dispatcher in not sending special orders-to Franconia was induced by his own negligent entries on his train sheet, a record which he kept of the progress by hour and minute of' both of the trains. On that train sheet it appears that he had marked “5 :45” and “5:47” as the time of the arrival and departure of train No. 4 at Mellen, instead of the figures “4:45” and “4:47,” which were the-actual times at which that train arrived and left that station. The circumstances called for the exercise of the greatest care and diligence-on the part of the plaintiff in error. It could not absolve itself from its duty by giving orders which, if strictly complied with, would have-insured the safety of its employés. The duty was a continuing one,, and called for the issuance of further orders as soon as it became ap [69] parent that a known failure to comply with orders already made was likely to or might result in disaster. There was no error in holding the plaintiff in error accountable for the negligence of the train dispatcher. Northern Pacific Ry. Co. v. Dixon, 194 U. S. 338, 24 Sup. Ct. 683, 48 L. Ed. 1006; Oregon Short Line v. Frost, 74 Fed. 965, 21 C. C. A. 186. In Northern Pacific Ry. Co. v. Mix., 121 Fed. 476, 57 C. C. A. 592, this court approved the instruction given by the trial court to the jury in such a case as follows: “It is the duty of the defendant company to all operatives upon its road to take all reasonable care and precaution to prevent opposing trains on its line of railway from colliding, and to exercise ordinary and reasonable care to notify, or cause to be notified, the operatives upon one train of the approach of a train in the opposite direction, and to give such orders as will insure the safe passage of the one by the other. With regard to the movement of trains, the train dispatcher stands in the place of the defendant.” The plaintiff in error challenges the jurisdiction of the Circuit Court, and contends that the allegation of the complaint as to the organization and existence of the plaintiff in error is not sufficient to show that it was a corporation of the United States. That allegation is as follows: “That the defendant is now, and at all times mentioned herein was, a corporation organized and existing under the laws of the United States, having its principal place of business at and being a resident of Los Angeles, in the state of California.” It is said that, in order to show jurisdiction in the Circuit Court, the complaint should have contained the allegation that the plaintiff in error was created by and existed under a law of the United States, and that it derives all its corporate powers and authority from such law, and that in the maintenance and operation of the railroad in question it was exercising or claiming to exercise such powers and authority. We think that all this is necessarily implied in the undenied allegation of the complaint. If the plaintiff in error was organized and existed under the laws of the United States, it could not have been organized or had its existence under other authority. It must have been a corporation of the United States, and as such entitled to maintain the action in the Circuit Court Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319. The judgment of the Circuit Court is affirmed.