78 Vt. 244 | Vt. | 1906
The court treated the train dispatcher as a vice principal of the defendant, and no question was or is made as to> the correctness of this view. The court definitely instructed the jury that Cowee, the engineer of the extra train, was a fellow servant of plaintiffs decedent, and in connection therewith explained the rules applicable to that relation. The case was submitted upon grounds which assumed that Tynan, the telegraph operator at the Burlington freightyard, was also a fellow servant of the deceased. The only questions left to the jury regarding Tynan were whether he was a competent operator; and if not, whether his incompetency caused the collision; and if it did, whether the defendant was negligent in employing him. If there was a failure in this connection to distinguish sufficiently between a mere act of neglect and the result of incompetency, no< exception was taken to' it.
The only other question submitted was whether the dispatcher was negligent in not taking further action after completing the order which allowed Cowee to run south from Burlingtom; and the only bearing given to the question of Tynan’s competency was upon his failure to report Cowee’s departure, and the effect of that failure on the action and responsibility of the dispatcher. The order was received by Tynan at five o’clock, and was thereupon made known to Cowee and repeated to the dispatcher, but was not made complete and effective by the dispatcher’s reply until 5 :o6. The
The plaintiff contends that' the dispatcher’s delay of nearly six minutes ini completing the order, in connection with the Flyer’s time of leaving Shelburne, produced a situation which made it his duty to give further instructions; that it was at least his duty, when he failed to receive a speedy report of Cowee’s departure, to inquire in regard to it; and that in any event, if Tynan had promptly reported Cowee’s time of leaving as registered, the dispatcher could have held the Flyer at Shelburne and prevented the collision. The court gave no definite construction to this order, and no instruction as to what it gave Cowee the fight to- do, but left it for the jury to say whether the dispatcher ought to have anticipated that Cowee would leave when the order was made effective, and have held the Flyer at Shelburne.
The defendant contends that Cowee’s departure was in direct violation of the order when' read in connection with the rules, and that there was nothing in the situation that called for further action on the part of the dispatcher. The order received by Cowee was as follows: “Engine 192 will run extra Burlington to Rutland; will meet train- 21 at Vergennes and .27 at New Haven Junction.” This order is in the form which the rules prescribe for extra trains, and under the form as embodied in the rules is the following direction: “A train receiving this order * * must keep clear of all regular trains, as required by rule.” Rule 86 provides that an inferior train must keep out of the way of a superior train; and Cowee’s
We find nothing in the circumstances disclosed by the evidence that tends to charge the dispatcher with a further duty. The fact that the order was sent six minutes before it was put in force could not have been- expected to- confuse a competent engineer. The dispatcher could properly assume that the engineer would determine his action with reference to the time left available by the completed order. The distance from the Burlington freightyard to Shelburne is not less than six and one-half miles. An extra is not only required to keep off the time of regular trains, but is required to allow five minutes at the place of meeting for taking- the siding and closing the switch. This required that Cowee be at Shelburne at 5:13, and making the least possible allowance for getting started after the order was made complete, it would require a run.of over a mile a minute; and if a use of three of the five minutes allowed for side-tracking had been contemplated, it would then have required a speed of over forty miles an hour. But the dispatcher was not bound to anticipate such a gross violation of the five minute rule, and without this it is clear that ordinary caution could not have anticipated a departure. Moreover, the question whether a train of this character can get off in season to1 reach another station within the time al
It remains ü> consider the bearing of Tynan’s conduct upon the question of liability. There was evidence tending to show that Tynan was ignorant of what the rules required of him in regard to reporting the departure of trains, and that the defendant was negligent in failing to ascertain it. This required the submission of the case to .the jury, if there was evidence tending to show that the accident was due to Tynan’s omission operating concurrently with Cowee’s negligence. So it is necessary to inquire as to the results that would probably have flowed from a prompt report of Cowee’s departure as registered.
If Tynan had acted at 5 :o8, this would have given ten minutes in which to stop the Flyer at Shelburne; an allowance which would probably have covered all chances of delay in the dispatcher’s office and at Shelburne. There was evidence tending to show that one ’purpose of the rule requiring a prompt report of departures is to keep the dispatcher constantly advised of the actual condition of the main line, and that one benefit contemplated from the requirement of prompt trans
We think that upon the case which the plaintiff’s evidence tended to establish, Tynan’s failure to report was one of two causes which concurred directly in producing the accident. ' It
The motion to direct a verdict for the defendant was properly overruled, but the court erred in its submission of the questions touching the dispatcher’s duty.
Judgment reversed and cause remanded.