177 F. 644 | 9th Cir. | 1910
(after stating the facts as above). We find nothing in the testimony on the second trial of this case calling for any change or modification of the opinion of this court upon the former writ of error. Nor do we find that the evidence calls for the application of any other or different rule of liability than there announced. Hamble v. Atchison, T. & S. F. Ry. Co., 164 Fed. 410, 92 C. C. A. 147, 22 L. R. A. (N. S.) 323. The fact that the Southern Pacific Company under the joint-track agreement retained full control of the movement of trains over the joint track, that the employés of the defendant were required to take an examination for fitness before going upon the same by an officer of the Southern Pacific Company, and that the Southern Pacific Company reserved in said agreement the right at any time to bar either temporarily or permanently any employe of the defendant from working upon or over said track, did not relieve the defendant from liability for the negligence of its servants in running trains over this track. The defendant was required to move its train from station to station on this track under the orders of the Southern Pacific train dispatcher, and if by reason of such orders a collision should occur between the defendants train and another, attributable to the negligence of the train dispatcher, the defendant would not be liable for the damages resulting therefrom. But if a collision occurs which cannot be attributed to the orders of the train dispatcher, but to the negligence of the defendant’s employés, the defendant cannot escape liability. We can add nothing to what has been said upon this subject in the former opinion of this court, and as there is no evidence tending in any degree to show that the collision was caused by any order or omission of the train dispatcher, or was the result of any order or omission growing out of the general control over the track exercised by the Southern Pacific Company, there was, in this aspect of the case, no question for the jury. It was a judicial question and so properly determined by the court.
The material question to be determined is whether there was competent evidence before the jury tending to show that the defendant’s .servants were negligent in running the train of engines and caboose through the block in which the collision occurred. •
It is contended on the part of the defendant that, if the cause of the collision was the running of this train at a high rate of speed and in disregard of all signals of danger, then it was the fault of the en
“The signal must be observed by the engineman when the train enters and by the trainmen lyhen the rear of the train passes out of the block.”
The rule refers to the signal displayed by the semaphore under the system of block signals. Under this rule it is the duty of the engineer to notice the signal upon entering a block for the purpose of ascertaining if the block is clear. If, it is clear, he can proceed; but, if it is not, it is his duty to bring his train to a stop and hold it until the block is cleared. Upon passing into a block, the forward wheels of the pony truck of the engine passing over the tracks turns the semaphore signal at the entrance of the block to danger, where it remains until the last two wheels of the last car in the train passing over the end of the rails at the other end of the block turn the signals back, showing that the block is clear. This signal showing danger is a warning to a train in the rear to keep off the block until it shows clear. In other words, it protects the rear end of the train from collision from an overtaking train, and it is the duty of the trainmen in the rear to see that the semaphore signal which has been turned to danger by the engine of that train stands at danger when the rear of the train passes that point. .But if the engine has passed into a block and has turned the signal showing that the train is in that block, it ceases to furnish information of the condition of the block in front of the train, and the trainmen cannot know its condition, unless, like the engineer, they had seen the signal before the train entered the block. This, in case of a very long train, would probably be impracticable for the conductor in the rear of the train; but it is by no means impracticable for a conductor having charge of a short train. These semaphores are large and conspicuous, and their position can be seen at a considerable distance. In this case the evidence tends to show that the semaphore stood at danger before the train, consisting' of three engines and a caboose, entered the block, showing that there was a train already in the block. This train of engines and caboose was a short train, and there is no apparent reason why the engineers on the second and third engines or the conductor seated in the cupola of the caboose could not have seen the position of the semaphore upon entering the. block, as well as the engineer on the first engine, and been warned that there was a train in that block. But aside from any duty these employés of defendant may have had in that respect, the important fact to be noticed is that, while the Southern Pacific engineer was in the lead and in charge of the air brakes, defendant’s conductor was in
Rule 75 of the Book of Rules and Regulations required that “conductors and brakemen of all trains when meeting or passing or leaving or approaching a station must be on the lookout for signals and be prepared to do anything required for safety and dispatch.” The evidence shows that this train was approaching and within a half a mile of the station at Bealville when it passed the cautionary signal about 200 or 250 feet east of tunnel No. 4. The conductor in charge of the train testified that this signal was visible from the mouth of tunnel No. 5. If it was yellow it meant to stop. If it was green it meant to go ahead. “The caution is to put the train under complete control. The light, when I saw it, was yellow.”
There was evidence that this train was going about 30 miles an hour when it passed this point. The extent and character of the wreckage caused by the collision was itself, under the circumstances, evidence that the train was descending at a dangerous rate of speed, and this of itself was evidence of negligence on the part of the conductor in charge of the train. The conductor says:
“I could have stopped it by opening the conductor's valve in the caboose. That is the method provided so the conductor can stop It. That would have set the brakes and stopped the train.”
Why did he not do it? This is his explanation:
“From the time I came within range of vision of this block signal until the time of the collision, I was sitting in the cupola of the caboose with my brakeman. He was on the other side of the cupola. I didn’t see that signal until just as it passed by the cupola of the caboose. * * * .lust as we came out o£ tunnel 3STo. 5, I reached out the side window and naught the snow off the front one. There was some snow. It had been storming. It was snowing at this time slightly. I pulled this snow in the window and threw it at my brakeman over on the other side. If there had been any fusees or caution signals on that track burning as I emerged from tunnel No. 5, and if I had been observing, I think I could have seen them. I didn’t see the fusee until just as wo went by it. After 1 threw this snow at my brakeman, I turned and looked out of the window, and I see this fusee.”
In this state of the evidence, the question whether the defendant’s employés were negligent in running this train into collision with the train on which plaintiff was riding, and whether this negligence was a proximate canse of the collision, were clearly questions to be submitted to the jury under proper instructions.
It is next contended that the court erred in refusing to receive and consider certain special instructions on behalf of the defendant; such refusal being based upon the ground that the requested instructions
“Any special charges or instructions asked for by either party must be presented to the court in writing directly after the close of the evidence and before any argument is made to the jury, or they will not be considered.”
The requested instructions were not presented at the close of the evidence, but after the close of the argument and the court was about to instruct the jury. The Circuit Court has power to make such rules regulating its “practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings.” Rev. St. § 918 (U. S. Comp. St. 1901, p. 685). The rule requiring instructions to be presented to the court at the close of the evidence and before argument is of that character. It is a general rule and has been found useful in practice. Its enforcement was in the discretion of the court. We do not think the court abused its discretion in enforcing it in this case. The court correctly instructed the jury upon all the matters contained in the special instructions which the jury was properly required to consider. To these instructions no exceptions were taken. The defendant was, therefore, in no way prejudiced by the refusal of the court to give the special instructions in ’ the language requested.
The remaining assignments of error are based in one form or another upon the questions we have already discussed. We do not think they call for further discussion either in relation to the admission or rejection of testimony, or in the instructions to the jury.
The judgment of the court below is affirmed.