Little Rock & M. R. v. Barry

SANBORN, Circuit Judge.

About 2 o’clock in the afternoon on October 26, 1890, engine No. 5 of the Tittle Rock & Memphis Railroad Company ran into the rear of a freight train on the railroad of that company; and Gt. F. Barry, the defendant in error, who was the iireman on this engine, leaped from it, and was injured. 'He sued the company for damages, and alleged that he was injured by its negligence in employing an incompetent conductor upon the train Ms engine drew, and in failing to give notice to its servants in charge of engine No. 5 of the whereabouts and movements of the freight train, and in failing to give notice to its servants in charge of the freight train of the whereabouts and movements of engine No. o. The plaintiff in error, the railroad company, answered that its conductor was not incompetent, and that it was not its duty to give the conductor and engineer of either of the trains which collided notice of the movements or whereabouts of the* other. Upon these two issues the testimony was conflicting, and the jury found for the defendant in error. These facts, however, were uncontradicied: The railroad of 1he plaintiff in error extends from Hopefield, a town opposite Memphis, in the state of Tennessee, westward to Little Rock, in the state of Arkansas. The first telegraph station west of Hopefield is Edmond-son, 15 miles distant, and the second is Forrest City, 47 miles distant. Argenta is a station still further west, near the city of Little Rock. The freight train was a regular train. It had left Hopefield at 3:50 a. m.; was due at Edmondson at 5 a. m., but had been so delayed that it did not leave that station until 9:40 a. in., 4 hours and 40 minutes later than its schedule 'time; and while it was standing on the main track, on a curve in a deep cut outside the yard limits, about half a mile east of Forrest City, at about 2 o’clock in the afternoon, engine No. 5 crashed into the rear of it. The engineer in charge of this engine had passed this freight train at Edmondson at 9:30 that morning, on his way east to Hopefield, and he knew it was late. When the superintendent of the company delivered the order, under which the train drawn by engine No. 5 was operated on this day, to its conductor, he told bim to look out for this freight train, as it was still in the bottom between Edmondson and Forrest City; and the conductor repeated this warning to the engineer when he communicated the order to him before leaving Hopefield. In the early part of this day a military company, which arrived at Memphis too late for the regular passenger train, engaged of this railroad company an extra train to take it to Little Rock, and the engineer and fireman of engine No. 5 were directed to draw this train with their engine. The freight train was, as we have said, a regular train, and it was known as “No. 5.” This was the order under which the extra ran:

Little Hock & Memphis Railroad.

Telegraphic Train. Order No. 5 31

Memphis, Oct. 26, 1890.

To 0. & E. of Eng. 5, Hopefield

0. & E. No. 5 at Forrest Oity

<r& E7EngTT&~ÑoT 6~Brinkley

Engine 5 will run from

Hopefield to Argenta extra

when No. 5 is overtaken pass

and run ahead of them

• meet No. 6 and Eng. 4 at

Brinkley, do not pass Brinkley

Unless Eng. 3 is there.

' A. J. W.

The rules of the company made, this extra train inferior in grade to the regular freight train, under this order, and imposed upon its conductor and engineer the duty to keep out of the way of that freight train, which they knew was somewhere upon the single track in front of them. These rules also required the crew of the freight train, when it stopped and stood, as it did, for three-quarters of an hour before the accident occurred, on the curve, in a deep cut, one-half mile east of Forrest City, to immediately station and maintain a flagman 10 or 12 telegraph poles in the rear of its train, and to place torpedoes on the track, not less than 15 telegraph poles behind it, for the purpose of warning and stopping approaching trains which might follow it. These rules gave the employés of the company notice that it proposed to use its railroad for the passage of trains at any time it chose, and that they must protect themselves against their approach. The engineer of the extra train, however, did not keep his •engine under control, so that he could stop it when he saw the freight train, but he drove it on with such'speed that it was impossible for him to prevent the collision after he came in sight of the regular train; and the crew of the freight train failed to give warning to the approaching extra of the presence of their train, either by torpedo or by fiagman. In short, these fellow servants of the defendant in error were guilty of gross negligence, without which it is highly improbable, if not impossible, that the accident could have occurred.

One of the rules of the company, however, required all orders to-be given in writing, where practicable; and counsel for the defendant in error insisted that the company was negligent because it did not insert in the written order to the men in control of the extra train a statement that the freight train was delayed east of Forrest City, and an admonition to beware of it, and because the train dispatcher did not stop the extra train at Edmondson, as it passed there, and notify its crew again that the freight had not reached Forrest City. In support of their view, three witnesses for the defendant in error, who had had experience in railroading, testified lhat in their opinion this course should have been pursued. On the other hand, it appeared by the evidence that this railroad was operated under the standard rules, which were prepared some years ago by experienced railroad men chosen for the purpose by the ‘officers of various railroad companies, and that: they had been subsequently so generally adopted, as the best in use, that, in 3888, 58,000 (and at: the time of the trial many more) miles of railroad were governed and operated • under them. Three witnesses of skill and experience in the operation of railroads, who were familiar with these rules, and the practice of railroads under them, testified, in effect, that in their judgment, and in the judgment of those who had prepared and adopted them, they were the best and the most conducive to safety of any rales in use in this country; that it is more conducive to the safety of the operation of railroads to require the men in charge of a train to look out for, and protect themselves at all times against, other- trains and engines, without notice of their whereabouts and movements, than it is to undertake to give them notice of these movements and whereabouts, and this for the reason that if men recurve, and come to expect, notice of approaching trains, they will invariably relax tlieir vigilance, and rely upon the notice, rather than upon their watchfulness, for tlieir safety, and that in the long run they will he caught in danger more frequently, and more accidents will happen at times when it is impossible or impracticable to convey notice to them, than would occur if they were spurred to constant watchfulness hv the knowledge that a train was liable to come upon them at: any time without notice. These witnesses testified, in substance, that this was the theory opon which the standard rules were based, and that they did not require the superintendent or train dispatcher to give the men in charge of either of these trains notice of the whereabouts or movement» of the other. They also testified that in tlieir opinion neither the duty of the company, nor the safety of its servants, required that the crew of either train should have notice of the movements or whereabouts of the other*, or that the extra train should be stopped at Edmondson, and its conductor or engineer informed that the freight was still between that station and Forrest City, where they knew it to be when they started. In this state of the evidence, it is assigned as error that the court charged the jury:

“In sending out special or extra trains, due and sufficient notice of the movements and whereabouts of all other trains and locomotives which are liable to be met or overtaken by the special or extra should be given to the officers or servants in charge of such trains. And due notice of such special or extra train should, in like manner, be given to the servants in' charge of such other trains, as far as may be necessary to guard against and prevent accident. And if, from any cause, it is impracticable to give such notice, then such other precautions as are reasonably adapted to prevent danger of collision or accident should be taken. If the jury believe from the evidence that the defendant, through any default or neglect on its part, failed to perform the aforesaid duties, and that the collision was caused by such failure, and that thereby plaintiff, sustained the injuries complained of, the defendant is liable in this action.”

This instruction is a plain declaration that the theory which the wisdom and experience of many of the most careful and intelligent railroad operators have deemed most conducive to the safety of their employés, their passengers, and their property, is unsound, that the rules based upon it are unreasonable, and that the operation of a railroad in accordance with it is negligence. Such a declaration of the law ought not to be made without clear and convincing proof, nor without the most careful and deliberate consideration. The theory upon which these rules are based, the rules themselves, and the operation of railroads in accordance with them, have all received the sanction of respectable authority. Railroad Co. v. Neer, 26 Ill. App. 356, 360; Id., 31 Ill. App. 126, 134, 139; Kennelty v. Railroad Co. (Pa. Sup.) 30 Atl. 1014; McGrath v. Railroad Co., 15 R. I. 95, 97, 22 Atl. 927; Wright v. Railroad Co., 25 N. Y. 562, 569. It does not seem unreasonable to suppose that men who are warned that other trains will pass over the railroad on which they are operating without notice to them, and that they must watch for and protect themselves against them at all times, would operate their trains with more care and fewer accidents than they would if an attempt were made to notify them of the whereabouts and movements of all trains, in view of the fact that' the expectation of such notice might relax their vigilance, and that they would often be in locations where it would be impossible to give them the notices. If experience has proved this supposition to be'in accordance with the fact, and has led to the adoption of. rules which do not require, but discountenance, such notices, because the habit of giving them has been found to increase the number and danger of accidents, as the adoption of these standard rules by so many railroad companies, and the testimony of the experienced witnesses who are opei’ating railroads under them, tend to show, it cannot be said that it was the duty of the defendant to give these notices, nor that its failure to give them was negligence. The fact is -not forgotten that the defendant in error produced three witnesses who testified that such notices should have been given. But in our opinion their testimony is insufficient, in the face of the evidence of three witnesses of equal credibility who-testified to the contrary, to so clearly establish the vice of the theory, and the unreasonableness of the rules and practice which companies operating more than 58,000 miles of railroad have adopted as the best and most conducive to- safety, as to warrant a court in so declaring as a matter of law. The skilled and experienced railroad oper-siiors who seem to have developed this theory and formulated these rules are undoubtedly more competent than jurors or judges to select aud prepare rules most conducive to the safe, economical, aud prosperous operation of railroads. The interest of the owners of these railroads, the interest aud ambition of those who operate them, alike prompt them to select: and use the best; and, unless the rules they adopt are clearly shown to be palpably unreasonable or clearly insufficient, railroad companies ought not to be charged with negligence on account of their adoption and use. Vedder v. Fellows, 20 N. Y. 126, 133; Enright v. Railway Co. (Mich.) 53 N. W. 536. In our opinion, there was no such proof in this case; and at the close of the trial the court should have instructed the jury that: the system of rules, and practice under them, which the company had adopted, was neither unreasonable nor insufficient. The defendant in error and the other servants of the company were familiar with these rules, and the theory upon which they were based. By taking service under them without objection or protest, they assumed the risks and dangers of the theory that: every employé who operates trains must: beware of other trains moving in the same direction, without notice of their whereabouts, and the risks and dangers of the system of rules which was based upon this theory. Wolsey v. Railroad Co., 33 Ohio St. 227. When a railroad company lias deliberately adopted a system of rules, which have been made familiar to its em-ployés, and its railroad is operated under them, the reasonableness and sufficiency of these rules are questions of law, and not of fact. These questions must be determined by the court, because there is no other way in which a set of rules may ever be established or adjudicated as either reasonable or sufficient. It may be said that trial judges often differ upon questions of this character. But the answer to this objection is that the appellate court will finally settle them, and in the end a substantial uniformity of decision as to the reasonableness and sufficiency of any set of rules in general use must, eventually result, if these questions are left to the determination of the courts. If, on the other hand, they are remitted to the juries, their various findings can result in little less than confusion worse confounded. The decision of an appellate court becomes a precedent for the rulings of many inferior courts. But the finding of one jury is no precedent for the decision of another, and a rule that is found to be reasonable by one jury will frequently be thought to be unreasonable by another; and no criterion will ever be established by which railroad companies may measure their duties in this regard, if the reasonableness and sufficiency of their rules are to be daily submitted to new tribunals, which are governed by no precedent, and are without experience in the determination of these questions. We adhere to the view of this question expressed by Judge Caldwell in the opiiuon of this court in Railway Co. v. Dye, 36 U. S. App. 23, 28, 16 C. C. A. 604, 607, and 70 Fed. 24, 27, which is supported by the following authorities, among others: Vedder v. Fellows, 20 N. Y. 126, 130; Railway v. Adcock, 52 Ark. 406, 410, 12 S. W. 874; Railway Co. v. Hammond, 58 Ark. 324, 334, 24 S. W. 723; Railroad Co. v. Whittemore, 43 Ill. 420, 423; Railroad Co. v. Fleming, 18 Am. & Eng. Ry. Cas. 347, 352; Tracy v. Railroad Co., 9 Bosw. 396, 398, 402; Hoffbauer v. Railroad Co., 52 Iowa, 342, 343, 3 N. W. 121.

Moreover, the court, in effect, told the jury by this instruction that, if they believed that the collision occurred through the failure or neglect of the railroad company to give these notices, the defendant in error might recover. It is difficult to understand what basis there is in this case, under the admitted facts, for a finding that a failure to give these notices caused this collision. If we concede that the failure to write the notice which was verbally given to the conductor and engineer of the extra train at Hopefield, that they must look out for the freight train which was in the bottom between Edmond-son and Forrest City- (an unreasonable concession, except for the sake of argument), and the failure to stop the extra train at Edmondson, and notify its conductor and engineer that the freight train was still there, and the failure to send a courier from Forrest City, or some other point, to the freight train, to notify its conductor and engineer that the extra train was coming, constituted negligence, there still remains what seems to us an insuperable obstacle to a recovery on this ground. An injury that could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable. An injury that' is not the natural consequence of an act or omission, and that would not have resulted but for the interposition of a new and independent cause, is not actionable. Railway Co. v. Elliott, 12 U. S. App. 381, 386, 5 C. C. A. 347, 350, and 55 Fed. 949, 952; Finalyson v. Milling Co., 32 U. S. App. 143, 151, 14 C. C. A. 492, 496, and 67 Fed. 507, 512; Railway Co. v. Bennett’s Adm’x, 32 U. S. App. 621, 16 C. C. A. 300, and 69 Fed. 525; Railway Co. v. Callaghan, 12 U. S. App. 541, 550, 6 C. C. A. 205, 210, and 56 Fed. 988, 993; Railway Co. v. Moseley, 12 U. S. App. 601, 609, 6 C. C. A. 641, 646, and 57 Fed. 921, 926; Insurance Co. v. Melick, 27 U. S. App. 547, 557, 12 C. C. A. 544, 550, and 65 Fed. 178, 184. It was the duty of the engineer and conductor of the extra train to look out for and to so operate their train that their engine would not crash into the freight which they knew was on the track before them. It was the duty of the engineer of that train, who alone could see the track in front of him, to so govern the speed of his engine that he could at any time stop it within the range of his vision. It was the duty of the crew of the freight train to place torpedoes on the track at least 15 telegraph poles in the rear of their train when it stopped at the place of the collision, and to station a flagman 10 or 12 telegraph poles behind that train. The railroad company had the right to presume that its servants on these trains would obey its rules and discharge these duties, and it had the right to act upon that assumption. It was its right to calculate the natural and probable result of its acts and omissions upon this supposition. Indeed, it could reckon upon no other, for it is alike impracticable and impossible to predicate and administer the rights and remedies of men on the theory that their associates and servants will either disregard their duties or violate the laws. Now, no one who reckoned on the faithful discharge of their duties by these employes could reasonably have anticipated this fatal collision as either a natural or probable consequence of the failure to give these notices. Nor could it have been the result of such failure, had not the unforeseen negligence of the engineer of the extra train, and the gross and unexpected carelessness of the crew of the freight train, intervened to interrupt the natural sequence of events, to turn aside their course, and to prevent the safe operation of these trains, which was the natural and probable result of the rules and the orders which the defendant gave. It was the gross negligence of these servants, which no one could anticipate, that constituled the intervening and proximate cause, without which this collision could never have been; and it is to (his, and not to the failure to give the notices, in our opinion, that this accident must be attributed, under the maxim, “Cansa próxima, non remota, spectatur.”

There are many other errors assigned in this case, and many other questions discussed in (he briefs of counsel, but. the- case must be retried on account of those to which we have referred. Wlmt has already been said will be a sufficient intimation of our views to guide the court in the coming trial, and it would be unprofitable to extend this opinion by the discussion of other questions which may not again arise. The judgment below must be reversed, and the cause remanded to the court below, with directions to grant a new trial; and it is so ordered.