Lasky v. Canadian Pacific Railway Co., 83 Me. 461

Lasky v. Canadian Pacific Railway Co.

83 Me. 461 | Me. | 1891

Peters, C. J.

The plaintiff, on July 1, 1889, was a locoanotive engineer in the employ of the Canadian Pacific Railway ■Company, in charge of a ballasting train at a station on the •road called Moosehead. On the early morning of that day the regular express passenger train running from Montreal to St. John became disabled by an accident to its engine, and was detained at a place about six miles east of another station on :the road called Mackamp. The latter station is about sixteen .miles west of Moosehead. The nearest telegraph station to the disabled train being Moosehead, Cole, the conductor of the train went to that place, and there sent to Brownville Junction, the principal office on that division of the road, the following dispatch: "Prom Moosehead, July 1, 1889. J. H. Van Zile (assistant superintendent). Broken journal on engine one seventy-four, one mile east of Mackamp. Please arrange for assistance. Cole.”

Somehow unaccountably the distance was given as one mile instead of the time distance, six miles.

After some preliminary action to prevent misunderstanding or mistake, the plaintiff, whose engine was number thirteen, received the following final order : " Canadian Pacific Railway Company. Train order from O. S. Brownville Jet. — July 1, ’89.

Eng. Eng. 13.

Moosehead.

Run from Moosehead to one (1) mile east Mackamp regardless of all trains. Look out'for number two ought one (201) with disabled engine, one mile east of Mackamp.

T. A. MacKinnon.”

Among the dispatches that were sent preparatory for the final order, the plaintiff had received the following : "You are required immediately to go and bring train No. 201 from one (1) mile east of Mackamp to Moosehead. Eng. No. 174 on No. *469201, disabled. Conductor Cole will go withyoufromMoosehcad.”

All the preliminary dispatches sent from Brownville Junction were signed in the name of an assistant superintendent, whilst the final order was in the name of MacKinnon, the superintendent of the road; the reason for it being that the printed rules of the company prescribe that no special engine shall be run upon the road unless by the latter’s authority.

The plaintiff with five other men, conductor Cole included, proceeded with‘his engine in execution of the order committed to him, running at the rate of about twenty miles an hour until he suddenly came upon the disabled train, which was somewhat hidden from his view by an embankment at a curve in the road, and the two engines came in collision, thereby causing plaintiff’s injury.

The action charges negligence against the corporation, the jury, under the direction of the court, sustaining the charge. To some of the rulings of the court the defendants take exception. Undoubtedly the issuing of the order, whether a rightful or wrongful act, was, as between these parties, the proximate cause of the accident. The plaintiff contends that the evidence shows the act was negligence per se, the defense, on the other hand, contending that it proves legal justification. The question of defendants ’ negligence was not submitted to the jury, the judge, ruling pro forma, as a matter of law, that the facts proved negligence. We think this erroneous, find that the most favorable position possible to be accorded the plaintiff, would be to allow the jury to determine that question for themselves.

The defendants are not liable for the result of the accident unless their superintendent was guilty of negligence. While Cole’s mistake was one of almost criminal carelessness, the corporation would not be subjected to liability on that account, inasmuch as engineers and conductors are regarded in this state as fellow-servants. The best cases on this branch of the law do not subject a master to liability to his servant except for the consequences of his own negligence or misfeasance. It is not-an absolute, unconditional liability. But the act of a superin*470tendent is the act of the corporation. His negligence is the negligence of the corporation.

It is contended in behalf of plaintiff that the issue on the question of negligence was one of law rather than of fact, for the reason that the testimony was undisputed. But this position leaves out of view the important consideration that the deductions of fact to be drawn from the evidence were disputed. The more correct statement of the rule is that, when the facts are undisputed, and the conclusion to be drawn from the facts is indisputable, the question may be controlled by the court. The parties differed widely on the interpretation of the evidence. The rule invoked by the plaintiff is more adapted to commercial cases than to those of negligence. In any case where intention is to be discovered, exigencies weighed, or matters of exjiediency considered, although the testimony may not be conflicting, still unless the case is so palpably right or wrong that there can be but one opinion about the case, the question is for the jury and not the court. Such interpretations arise more often in negligence cases than any other. The negligence of neither party can be conclusively established by a state of undisputed facts from which different inferences may bo fairly drawn, or upon which fair-minded men may arrive at different conclusions. Nugent v. Boston C. & M. R. Co. 80 Maine, 62, and cases cited.

The text writers declare the rule that in cases of negligence the question is especially one of fact for the jury. The judge may decide whether there is any evidence of negligence at all to go to the jury ; a mere scintilla of evidence not being enough. 2 Thompson, Neg. 1235 ; Cooley, Torts. 669 ; Shearman, Neg. 19; Whittaker’s Smith on Neg. 38, and numerous citations in note.

In the present case the defense, as before said, contends that the act of the superintendent was not a negligent act, either as .a matter of fact or of law. Certainly the circumstances to be considered in justification of the conduct of the superintendent are of great weight. Belief must be sent to the disabled train. The news of the accident and of the location of the train came from an intelligent and trusted conductor. There is nothing *471doubtful or equivocal in the words of his dispatch. On the contrary, it gives definite information that the train is east of Maokamp and one mile therefrom. No other person coaid be consulted to confirm his statement, as no one knowing anything of the accident was within telegraphic reach. The superintendent must rely upon such information as could be obtained. His mind perhaps would naturally he more intent upon the distress of the train than its precise location. He ordered the plaintiff to go to the disabled train with his engine, requiring the conductor to accompany him. He had a right to expect that the engineer on the disabled train would he on a proper look-out for the approaching locomotive, and that the plaintiff would proceed on his mission with unusual carefulness as no special train or engine should he run without such precaution. He knew that the conductor would be upon the engine to direct or advise the plaintiff should he be running into danger. No rate of speed was dictated by the order, the plaintiff having a general discretion in the premises. No one would construe the order as meaning an exact mile, hut only that distance by estimation. A strange thing it is, if plaintiff’s story he true, that he and the conductor never passed a w'ord with each other while the engine was on its passage or at any other time. The conductor, by his silence, exposed his own life to danger with his eyes open to it, as he must have known the lay of the land and the whereabouts of Ms train on the road. But we do not get the conductor’s version of the events of the day as he was not a witness. Such a mistake might not occur once in a thousand times. It was reasonably expected that by the presence and assistance of the conductor the plaintiff would go safely to the train. IIowr many men would have acted more judiciously than did the superintendent? It is urged on the plaintiff’s side of the case that the order was couched in terms too peremptory, and that the superintendent should have made more searching inquiry of the conductor in order to tost the reliability of Ihe information conveyed by his dispatch. But it is to be remembered that the superintendent and conductor were many miles apart, and that the superintendent prepared the opportunity for *472a personal interview between tlie plaintiff and the conductor, by which the plaintiff could ascertain fuller particulars than the superintendent had. And it is a remarkable fact, reluctantly disclosed in the plaintiff’s testimony, that he had substantially all the information that the superintendent had to act upon. He knew that conductor Cole brought the news of the accident to Moosehead ; that he communicated it to Brownville Junction; that there was no other source of information, and still he obeyed the order apparently without apprehension of danger. His own judgment suggested neither fear nor hesitation. The defendants contend that the plaintiff was himself guilty of negligence in his omission to communicate personally with the conductor, and that, if the superintendent could telegraph for particulars, the plaintiff could, at least, have asked for them.

The defendants assail the plaintiff’s case from another position. Inasmuch as the dispatch to the plaintiff was really sent in the superintendent’s name by the train-dispatcher at Brown-ville, the superintendent not being there at the time and not conusant of it, the plaintiff himself being fully aware of the facts, it is contended that the plaintiff cannot prevail in the action because he and the train-dispatcher were fellow-servants in the same employment. We do not assent to this position. It appears that it was customary for the train-dispatcher thus to use the superintendent’s name, and that the practice was acqiiiesced in by the superintendent and other officials connected with the road. An act done for the superintendent by his authority, either general or special, is his act. The employee is not required nor permitted to investigate the question of authority. The superintendent’s name conclusively imports authority, unless it be forged. The servant must obey or be discharged from his employment. It would greatly demoralize the service if it were otherwise. Performance of duty to the road places all consequent liabilities upon the road. The claim set up by the defense in this particular is repelled by the tenor of numerous cases from which has been deduced the following general declaration : "The master may by withdrawing himself from the management of his business, and putting it in the hands of another with full *473power to act for him, make snob substitute’s act his own, and become liable for his injuries to servants in like manner as if they were committed by himself.” Pierce Kailroads, 367, and cases cited.

The other questions of the case easily dispose of themselves. On the first point only do we think the defendants have a cause for complaint.

Exceptions sustained.

Libbey, Emery, Foster, Haskell and Wiiiteiiouse, JJ., concurred.