delivered the opinion of the court.
This action was Brought by Campbell in the United States District Court for the Eastern District of Washington to recover damages for personal injuries, and was based upon the Federal Employers’ Liability Act of April 22, 1908 (c. 149;- 35 Stat. 65), and the Safety Appliance Act of March 2, 1893, as amended March 2, 1903 (c. 196; 27 Stat. 531; c. 976; 32 Stat. 943). A judgment in plaintiff’s favor was affirmed by the.Circuit Court of Appeals (217 Fed. Rep. 518), and the casé comes here on writ of error.
At the time of Campbell’s injury, July 31, 1909, the company was operating a singlе track electric railway between the city of Spokane in the State of Washington and the town of Cceur d’Alene in the State of Idaho. It was operated under standard railroad rules. The running time of regular trains was fixed by a time table, upon which they were designated by numbers. Special trains were run by telegraphic orders given by a train dispatcher, whose office was in Spokane. Under the rules, regular trains were superior to special trainSj and specials were required to look out for and keep out of the way of
His complaint in the action counted upon two grounds of recovery: (a) That the company, through its agents and employees, negligently instructed him to proceed with his train from.Coeur d’Alene to Spokane, and to-meet and pass No. 20 at the town of Alan, a station west of the point of collision; and (b) That the collision was directly due to the failure of the company to furnish him with a motor and train supplied with proper air brakes
Campbell testified that having arrived in Coeur d’Alene with his train about 4.20 p. m., and brought it into position to return to Spokane, he received through the conductor, Whittlesey, orders both written and oral for the running of the train; that the written order said that “Motor 5 would run special Coeur d’Alene to Spokane and would meet Number 20 at Alan;” that when the written order was received Campbell was in his cab, ready to start, and that the conductor on delivering the order to him, said: “All right, go ahead; get out of town.” Campbell was unable to produce the written order. If its contents were as-he testified, he was justified in at once leaving Coeur d’Alene and running to Alan, the order giving him a right of way over all trains to that point. But defendаnt’s evidence was to the effect that the written order actually read: “Motor 5 will run spl. C. d’Alene to Spokane, meet spl. 4 east at Alan.” Campbell admitted that if this was iii fact the order it did not authorize him to leave Coeur d’Alene before No. 20 came in, for it made no mention of that train, and did not supersede the right given to it by rules and time table. Nor was it contended in his behalf that the conductor’s verbal order could in any way modify the written order. It appeared that therе was a land registration in progress at Coeur d’Alene, and because of the resulting rush of travel incoming trains stopped at the west end of the yard and went on a Y switch, where the train was turned and then backed down to the Coeur d’Alene station, while trains ready to leave Coeur d’Alene upon the arrival of an incoming train would run to the end of the yard between the legs of the Y, wait there for the incoming train, and • pull out as soon as it headed in on the Y. Whittlesey testified that he intеnded the train to go to the Y and •
Undеr instructions from the trial court the jury, besides returning a general verdict, which was in favor of the plaintiff with $7,500 damages, made three special findings in writing: (1) That Campbell before leaving Cceur d’Alene received a train order reading as follows: “Motor 5 will run Spl. C. d’Alene to Spokane, meet special 4 east at Alan;” (2) that the air brakes on Campbell’s train immediately before the collision were insufficient to enable bim to control the speed of the train; (3) that Campbell’s leаving Cceur d’Alene in violation of
The general verdict and the special findings were taken pursuant to the state practice prescribed by certain sections of the Code permitting the trial judge to instruct the jury, if they render a general verdict, to find upon particular questions of fact to be stated in writing, and providing that “When a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” 1 Rem. & B. Ann. Code, §§ 364, 365.. The rule established by decisions of the Supreme Court of the State is that where the general verdict and the special findings can be harmonized by taking into consideration the entire record of the cause including the evidence and the instructions to the jury, and construing it liberally for that purpose, it is the duty of the court to harmonize them, and that where a special finding is susceptible of two constructions, one of which will support the general verdict and the other will not, that construction shall be adopted which will support the general verdict. Pepperall v. City Park Transit Co., 15 Washington, 176, 180, 183; Mercier v. Travelers Ins. Co., 24 Washington, 147, 153, 154; McCorkle v. Mallory, 30 Washington, 632, 637; Crowley v. Nor. Pac. Ry., 46 Washington, 85, 87, 88; Sudden & Christenson v. Morse, 55 Washington, 372, 375; Cameron v. Stack-Gibbs Lumber Co., 68 Washington, 539, 544.
Whether under the Conformity Act (Rev. Stat., § 914) the trial court was required to adhere to the state practice governing the effect of the general verdict and the special findings may not be free from doubt. See
Nudd
v.
Bur
The Court of Appeals held (217 Fed. Rep. 523) that the Federal courts are not bound by local rules of practice with respect to submitting special findings along with a general verdict, or with respect to interpreting such verdicts; and that in this case it must be determined, as matter of law, and without reference to the testimony, whether the special findings еntitled defendant to judgment notwithstanding the general verdict.
We find it unnecessary to decide the question of practice, and laying aside all technicalities will assume, in favor of plaintiff in error, that the verdict-is to be interpreted according to the local rule — that is, by reading the special findings in the light of the issues and the evidence, but in the light also of the general verdict, so as to arrive at the true intent and meaning of the jury. So considered, the findings establish that there was no nеgligence on the part of the company in giving Campbell his running orders; that he received the order to meet Special 4 east at Alan, which, according to the admitted effect of the rules of the company, meant that he should not leave Coeur d’Alene until the arrival of regular No. 20; that he left Coeur d’Alene in disregard or violation of his orders, and that this was “the proximate cause” of the accident. At the same time, the special findings establish that the air brakes on his train immediately before the collision were insufficient to enable him to control the speed of the train. And the general verdict, so far as
It is insisted that there was no evidence that the provision of the Safety Appliance Act respecting train brakes was violated. It is of course settled that if the equipment was in fact defective or out of repair, the question whether this was attributable to the company’s negligence is immaterial.
St. Louis &c. Ry.
v.
Taylor,
“It shall be unlawful for any common сarrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power driving-wheel brake and appliances for operating the train-brake system, or to run any train in such traffic [after a specified date] that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without rеquiring brakemen to use the common hand brake for that purpose.” Section 6, prescribing penalties, also uses the words “locomotive engine” and “locomotives.” But the 1903 amendment, which, as frequently pointed out, was enacted for the purpose of enlarging the scope of the Act (Southern Ry. v. United States,222 U. S. 20 , 26; Southern Ry. v. Crockett,234 U. S. 725 , 735), in its first section declares-that the provisions relating to train brakes (among others) shall be held to apply to “all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate сommerce . . . and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith,” subject to exceptions not now pertinent. The second section declares that whenever any train is operated with power or train brakes, “not less than fifty per centum of the cars of such train shall have their brakes used and operated by the engineer of the locomotive drawing such train.” Of course, an important object of having-a train equipped with a system of brakes ■under the single control of the engineer is to permit of a prompt and effective reduction of speed when the man driving the train is notified of danger. The importance of this is precisely the same whatever be the motive power, and, in view of the beneficial purpose of the Act and the evident intent of Congress to enlarge its scope so far as necessary to guard against the dangers in view, the term “similar vehicles” must be held to have the effect of bringing electric motors and trains drawn by them within the provision respecting power or train brakes. The very exemption of trains, cars, and locomotives “used upon street railways” indicates that electric cars were in contemplation. And see Omaha Street Ry. v. Interstate Com. Comm., 230 U. S. 324 , 337; Kansas City Ry. v. McAdow,240 U. S. 51 , 54.
It is said that, conceding the power brake provision applies to electric trains, the duty imposed was not owed to Campbell under the special circumstances established by the jury’s findings. The аrgument is that the purpose of the brake requirements is to place control of the train in the hands of the engineer so that the safety of passengers and employees may be conserved, not that the engineer should be able to escape injury from peril to which he had wrongfully exposed himself; and that Campbell cannot
It is most earnestly insisted that the findings 'establish that Campbell was not in the course of his employment when he was injured, and consequently that judgment could not properly be entered in his favor upon the cause of aсtion established by the general verdict. This invokes the doctrine that where an employee voluntarily and without necessity growing out of his work abandons the employment and steps entirely aside from the line of his duty, he suspends the relation of employer and employee and puts himself in the attitude of a stranger or a licensee. The cases cited are those where an employee intentionally has gone outside of the scope of his employment оr departed from the place of duty. The present case is not of that character; for Campbell, as the jury might and presumably did find, had no thought of stepping aside from the line of his duty. From the fact that he disregarded and in effect violated the order as actually communicated to him it of course does not necessarily follow that he did this willfully. The jury was not bound to presume — it would hardly be reasonable to presume — - that he deliberately and intentionally ran his train out upon a single track on which he knew an incoming train with superior rights was then due. However plain his mistake, the jury reasonably might find it to be no more than a mistake attributable to mental, aberration, or inattention, or failure for some other reason to apprehend or comprehend the order communicated to him. In its legal effect this was nothing more than negligence on his part, and not a departure from the course of his employment.
Plaintiff in error refers to the fact that the wreck occurred in Idaho, and cites two sections of the Criminal Code of that State, one rendering a willful violation or omission of duty on the part of one in Campbell’s position, whereby human life or safety is endangered, punishable as a misdemeanor; the other making willful or negligent conduct which causes a collision of trains, and the resulting death of a human being, a criminal offense. 2 Idaho Rev. Code, §§ 6926, 6909. Whether Campbell was or is punishable criminally under either of these sections we are not called upon to say. But his right to recover against his employer depends upon the acts of Congress, to which all state legislation affecting the subject-matter must yield. Tex. & Pac. Ry. v. Rigsby, ante, pp. 33, 41.
Upon the whole case, we have no difficulty in sustaining his right of action under the Employers’ Liability Act. That Act (§1; 35 Stat. 65) imposes a liability for injury to an employee “resulting
in whole or in part
from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due
The assignments of error that are based upon the instructions given and refused to be given to the jury raise no question other than those which have been disposed of.
Judgment affirmed.