69 F. 673 | U.S. Circuit Court for the Northern District of Georgia | 1895
(after stating the facts). It will be perceived that the matters for the determination of the special master were almost entirely questions of fact, issues of fact, and conflicting testimony. The master, who is usually diligent and careful, seems to have given unusual care and attention to the consideration of this case. His report shows most thorough consideration of all the questions involved. The trial before the master occupied many weeks, and the testimony is voluminous. It seems -clear that the master was correct in finding that the controlling-cause of this accident was the negligence of the train dispatcher. The only doubtful question seems to be as to whether there was a contributory negligence on the part of intervener, Wyche, in running his train. This question of contributory negligence is one, aboye all others, which courts leave to the determination of jurors, when a case is for jury trial, or to a master, when the case is one for the determination of that officer. The finding- of the jury or master in such a case will not be disturbed, unless it is manifestly erroneous. Such is not the case here. The question, it may be conceded, was doubtful, and so the master seems to have regarded it. He seems to have hesitated long, and to have given the subject the most earnest consideration. It comes within that class of cases where the court will not interfere with the finding of a master on questions of fact.
The only legal question involved is as to the finding of the special master that the train dispatcher is the alter ego of the defendant. The correctness of this finding is too clear for discussion. "He is , not, either upon principle or authority, a fellow servant of the engineer, and there is no difficulty whatever in the case on that ground Railroad Co. v. Camp, 13 C. C. A. 283, 65 Fed. 952, citing the following authorities on pages 959 and 960, 65 Fed., and page 240, 13 C. C. A.: Hankins v. Railroad Co., 142 N. Y. 416, 37 N. E. 466; Dana v. Railroad Co., 92 N. Y. 639; Sheehan v. Railroad Co., 91 N. Y. 342; Slater v. Jewett, 85 N. Y. 62; Darrigan v. Railroad Co., 52 Conn. 285; Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514; Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502; Railroad Co. v. Barry, 58 Ark. 198, 23 S. W. 1097; Railroad Co. v. McLallen, 84 Ill 109; Smith v. Railway Co., 92 Mo. 359, 4 S. W. 129; Washburn v. Railroad Co., 3 Head, 638; Railway Co. v. Arispe, 5 Tex. Civ. App. 611, 23 S. W. 928, and 24 S. W. 33; McKin. Fel. Serv. § 143.
The amount found in favor of the intervener by the special master was reasonable, and the exceptions must be overruled and the report confirmed.
