delivered the opinion of the Court.
The administratrix of the estate of Simpson, an employee of the petitioner, brought this action under thе Federal Employers’ Liability Act (Act of April 22, 1908,
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c. 149, § 1, 35 Stat. 65; U. S. Code, Title 45, § 51) to recover damages for his death. She had a verdict in her favor in the Circuit Court of Prairie County, Arkansas, and the Supreme Court of the State affirmеd.
Simpson was the engineer of No. 775, an extra train engaged in interstate commerce. Before lеaving Pine Bluff, Arkansas, he received a written train order, No. 104, notifying him to proceed south to the cross-оver at McNeil, Arkansas, and there wait upon a siding until another train, No. 18, going north, had arrived and passed. On arriving at McNeil, Simpson took his train, consisting of 43 freight cars, upon the siding at the cross-over, but did not wait there. He had received at McNeil another order (train order No. 132) notifying him that another train (second 18) was tо meet him farther south at Stamps. The conjecture is offered that he confused train No. 18 with second Nо. 18, though there is no dispute that to a railroad employee the description was entirely intelligible, trаins of the same number being designated as first, second, third and so forth. At all events, Simpson instead of waiting at the siding moved out upon the main track. About a mile away there was a head-on collision between his train аnd No. 18, in which he and others were killed. •
The respondent admits, as she admitted on the trial, that the engineer wаs negligent and rests her right to recover upon what is characterized as the doctrine of “ the last clear chance.” To bring that doctrine into play she relies upon these facts: At the end of the long train of 43 freight cars was a caboose in which the conductor and two brakemen rode. The brakemen say that as the train left the siding, they remembered the first order and asked the conductor whether any nеw ones contradicting it had come into his hands. Not hearing of any, they called out *350 to apply the аir brakes, and one of them offered to do so himself. This the conductor forbade, ,and said to bring him the written оrders which were in the cupola of the caboose, so that he might read them again. This was done аt once. While the orders were in the conductor’s hands and he was reading them again, the collision occurred.
The facts so summarized are insufficient to relieve the engineer from the sole respоnsibility for the casualty that resulted in his death. What was said by this court in
Davis
v.
Kennedy,
We do not need to inquire whether a different conclusion would follow if the conductor in the caboose had discovered that the engineer had gone upon the main track through a misunderstanding of a later order, and discovering this, had failed after a substantial interval of time to give wаrning of a peril that he could have easily averted. Nothing of the kind appears. There is an absence of the essential factors that wake into life the doctrine of the last clear chanсe. In the first place, the conductor did not know any more than Simpson did that an order had been violаted. He was distrustful of his memory, and was looking at the written orders at the moment of the collision. Negligent he may have been, but not
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recklessly indifferent to a duty to counteract a peril perceived and understood.
Woloszynowski
v.
N. Y. C. R. Co.,
The judgment should be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed.