144 Md. 324 | Md. | 1924
delivered the opinion of the Court.
This, is an action, brought- under the Federal Employers’ Liability Act of 1908, oh. 149 (35 Stat. at L. 65), by the administrator of Benjamin F. Dyson against the appellant-. On May 5th, 1921, Dyson sustained injuries' while operating as motorman on a work train on the “Short- Line Division” of the appellant’s road, of which ho died the next day. The important question for our determination, indeed the- only one it is necessary to discuss at length, is whether Clarence Johnson, the conductor on the train, was guilty of such negligence as made the appellant liable', notwithstanding it is shown that Dyson was negligent.
The work train was operating under special orders on that day. Train Order Ho. 2, addressed “To Conductor and Motorman,” ordered that “Car Ho. 7 work extra between Glenburnie and Power House Cove from 6.30 A. M. until 12.30 P. M., and Order Ho. 6 directed that “Car Ho. 7 will work extra between linthieum and Elvat-on from 12.301 P. M. until 5.00 P. M.” Both the1 motorman and the conductor received copies of these orders, and compared them to see that they were the same.
The- main line of the W., B. &"A. E. R E. Co. runs from Baltimore to Washington, and what was- formerly the Annapolis and Baltimore Shore Line was merged- in and known as the Short line Division of the W., B. & A. E. E. E. and joins the main line at linthieum, or what is also- known as Short Tine Junction. The cars- on that division run over the same tracks, into and out of Baltimore-, as tho-se of the main line do. In going south from Baltimore- to- Annapolis the- stations between Linthieum and Elvation are Shipley, Fernda-le, Glenburnie, Saunders Eange and Marley. There
Time table HA. 8, which shows the schedules on the Short Line Division, went into effect on the 2nd day of May, 1921, and was in effect on the day of the accident. Those time tables were delivered to the employees the evening before. Johnson took his and signed for it and he gave Dyson his and he sigpied for it. A shedule, known as Ho. 7, had been in effect from March 14, 1921, until the one of May 2nd was issued, the principal difference between the two being that on Ho. 8 there were five trains which only ran on Saturdays; and Sundays, while they were daily on Ho. 7. Amongst other trains from Baltimore to Annapolis on both schedules were Ho. 337, leaving Baltimore at 2.20 P. M.; Ho. 339 leaving thea’e at 2.50; and Ho. 341, leaving; at 3.20. Without referring to all, Ho. 339 was- due at Linthieum .at 3.13, at Shipley at 3.15, at Ferndale at 3.20, at Glenburnie at 3.23, and at Marley at 3.27. Ho. 341 was due at those places, respectively, at thirty minutes later. The work train had been working at Glenburnie. It started to rain and the track men, not caring to work in the rain, made some complaint to the foreman, who- said: “We will gp to Mai’ley and get rid of these tools. They want to turn, some rails there tonight, and we will quit for the day.” The work train then went to Marley, which is the first station north of Elvaton. After they unloaded, Mr. Hobbs, the foreman of that gang of men, said : “All right, we will go back.”
Clarence Johnson, the conductor, who was produced by the plaintiff, testified as follows:
“I had on a long gum coat and gum boots, buttoned up for the rain. Mr. Dyson was in the motorman’s cab, dry, equally capable as I was to look at time tables, and I asked him, I says, Uncle Ben, look and see what time the next train is due Linthieum.’ Mr. Dyson did not use the time*327 table given to him by the company. He used a- copy on a piece of writing paper designating the time of arrival of trains, and be said the next tr.ain was due at 3.45, I looked at my watch and saw we had ample time to go to Shipley— make it Linthicum — and T said, ‘We will go ahead.’ So I got on the train and we started north. We stopped at Glen-burn ie1 and some of the trackmen got off. We stopped at Ferndale and some of the trackmen got off. AVe proceeded from Ferndale to put the train in a siding at Linthicum and had just, gotten about two- hundred feet north of Ferndale Station when the passenger train approached us- and ran into us. That is up to the accident as far as- I can go.”
According to time table Ho. 8 there were on the Short Line Division daily half hour trains leaving Baltimore from 5.20 A. hi. until 0.20 P. M., inclusive, with the. exception of five which only ran every half hour on Saturdays and Sundays. That was also- the case1 on the former schedule (Ho-. 7) excepting the half hour trains, left Baltimore daily throughout those hours, including the five which only ran on Saturdays and Sundays on Schedule Ho. 8.
Conductor Johnson was in the motorman’s cab from Gflenburnie., sitting on the sand box. When they were two or three hundred feet- beyond Ferndale Train Ho-. 339, a regular scheduled train, leaving Baltimore at 2.50 P. 3L, and the work train had a collision, which resulted in injuries to Johnson and also to Dyson, of which the. latter died the next day. Johnson said he thought Ho. 339 was coming between forty-five1 and fifty miles, an liour. He was asked why he did not speak to Dyson concerning 339 train and explained, “I did not think of the train at that time.” He was asked: “Q. AAJiat would you have done if you had thought of the train ?” and replied, “I would have cleared the train according to the rulo, five minutes before the arrival of the train where1 we were.”
That question and answer constitute, the third exception, but we have stated it as it was asked and answered. Again
Every common carrier by railroad, while engaged in interstate commerce, under section 1 of that act, is made liable “for such injury or death 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 to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.” By section 3, it is provided that — “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall he diminished by the jury in proportion to the amount of negligence attributable to such employee,” provided that no such employee shall be held guilty of contributory negligence where the violation by such carrier of any statute enacted for the safety of employees contributed to the injury or death, .and by section 4, that “such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the- safety of employees contributed to the injury or1 death of such employee.”
As there can, under the evidence in the record, be no claim of defect or insufficiency in its equipment, or the violation by the appellant of any statute enacted for the safety of employees, or of any negligence of any other employee Causing
The motorman and conductor received the same orders, to work their train extra between the points named during the hours mentioned. Each had been furnished with a time table on which the time of all regular trains at the various stations was given, and there were special instructions, on the back of the time table, one of which was “Extra trains must clear all regular trains five minutes. See Rules 208, 209 and 219.” Each of them had copies of the rules.
Rule 208 says: “A train failing to. clear the main track by the time required by rule must be protected as provided bp Buie 219.” (Italic ours.)
Rule 209 provides that: “All order trains must keep out of the way of regular scheduled trains and clear their time at least five minutes, unless they have been given a. meeting or passing order, or other order relieving them from that necessity.”
Rule 219 is a, long one, and provides that when a train is detained for any cause, “the conductor must immediately go back with danger signals to stop any train moving in the same direction,” and then provides for his placing torpedoes on the rail and returning to a point 1,200 feet from the roar of his train, where he must remain until an approaching train has been stopped, or is recalled by the whistle of his own train. That rule concludes : “The front of the train must be protected in the same way when necessary, by the motorman.” (Italics ours..)
Rule 225 is: “Both motorman and conductor are responsible for the safety of their trains and the proper fulfillment of all running orders received by. them, * * * .and under conditions not provided for by these rules must take every precaution for their protection.”
There are a number of other rules looking to the protection of the trains and employees themselves.- Amongst others, Ho. 105, which provides that — “Motormen must not start their trains without first receiving proper signals from the conductor, and never stand without the signal being correct.” (Italics ours.)
It would seem dear from the rules and what is said in this record that Dyson was not subject to the orders of Johnson in such way as1 to interfere with him (Dyson) operating the train or protecting himself. He was operating the car, and could have gone into' a siding in ample time to avoid the collision. His injury resulting in his death was not due to any order or direction of the conductor, and it could not have been the intention of Congress to hold a carrier responsible for thei death of a motorman under such circumstances; as we have before us. This motorman, by his own mistake in reference to Ho‘. 339, was himself killed and caused injury to' the conductor. It cannot fairly be said that the accident was caused by anyone but Dyson. We cannot hold the carrier responsible because the conductor1 did not detect the mistake of the motorman when he said the next train was due at Shipley at 3.45, when unfortunately that was 30 minutes after it was due, Ho. 339 being due there at 3.15, while Ho'. 341 was due at 3.45. As said by the Court as to Wiles, in Great Northern R. Co. v. Wiles, 240 U. S. 448: “His neglect might have extended the catastrophe to the destruction of passengers in the colliding train. How imperative his duty was is manifest. To excuse its neglect in any way would cast immeasurable liability tipon the railroads, and, what is of greater concern, remove security from the lives of those who travel
This conductor did not know that Dyson had made a. misrtake as. to the time, and while, as we look back from the present, it might be thought it would have been better if Johnson had looked at the time table to see if Dyson was light, yet he had no reason to question the latter’s, accuracy. He knew that Dyson was regarded as a competent and reliable motorman, and had had more experience than he had had. It would not seem right to hold that because J ohnson did not detect and correct Dyson’s mistake., Dyson’s personal representative can mulct, the carrier in damages, although Dyson was operating the ear, had the same opportunity that Johnson had to know when the next- train was due, as he had been furnished a copy of the time table and the rules, and by the rules was required to have it. with him. By the rules Dyson was at least equally responsible with Johnson for their violation, yet it is sought to unload the burden for the benefit of Dyson’s representative and put it. on the carrier because Johnson was equally responsible. We do not think that would he just, or calculated to protect passengers using the cars, or in accordance with the decisions applicable to the conditions in this case, as far as we have found them. The motorman’s safety and that of the conductor were dependent upon his giving a correct answer to- the. conductor, who at the time of his inquiry was out in the rain, protected as. well as he1 could be in bis gum coat, which would interfere with his. use of the time table he had, even if he had any reason to suspect that the motorman was in error, which is not shown, as the latter had, or was presumed to have, his own copy of the time table, and wras known as a competent motorman.
We c-anuot attach the same importance that the appellee does to what the conductor said on the stand as to train 38!) being out of his mind, and if he had been conscious of having
We have, then, at the time of the accident, two- employees of the appellant in the motorman’s vestibule, the motorman running the train and the conductor, in the absence o-f some evidence to the contrary, being- presumed to have been there on some business requiring his presence-, as Rule 3'54 says: “Uor shall the conductor remain in the motorman’s vestibule longer than is necessary to properly receive or deliver train orders, or to attend to any other’ business requiring1 his presence there.”
If that is not to be presumed, we have the two- there, the motorman knowing that the conductor was there, knowing, of course, that he- (the motorman) was passing the sidings, and presumably having his- time table- with him.
The case of Davis v. Payne, decided by the Supreme Court of Oregon in June, 1923, and reported in 216 Pac. Rep. 195, is one of the most helpful we have found or have been referred to, as there are -several opinions in it which not only clearly give the reasons of the different judges, hut have- collected most, if not all, of the decisions hearing on this particular subject decided by the Supreme Court of the United States, and many decided by the state courts. An alleged mistake in an order for the movement of a freight train was relied on in that case. It was contended, amongst other things, that because trains were invariably started upon a signal from the conductor to the engineer, the jury had a right to assume that the engineer was justified in violating the order and starting upon the signal of the conductor. The
The court said: “We therefore conclude that when two or more railroad employees act in concert, and none of them do any act except that which every other one intends that he shall do, and injury results to one or more of them from the combined act of all, and the doing of the combined act was known by all of them to he wrongful, or in disregard of a known duty, or in violation, of a positive order of the carrier, and was not in obedience to any order of a superior, uoue of the parties so acting are entitled to recover under the Federal Employers’ Liability Act, when the doing by them of the act is the sole proximate cause of the injury, aud no concurring negligent act or omission of the carrier, or of some other agent, servant or employee of the carrier, in any way contributed to bring about the injury.”
The case of Spokane & I. E. R. Co. v. Campbell, 217 Fed. 518, affirmed in 241 U. S. 497, was relied on by the plaintiff in that ease as. well as in this case. The Circuit Court of Appeals held “that the element of proximate cause is eliminated where concurring acts of the employer and employee contribute to. the injury or death of the employee,” but the Supreme Court said: “We agree with this, except that we find it unnecessary to say the effect of the statute is wholly
Another case relied on by the plaintiff was that of Ill. Cent. R. Co. v. Skaggs, 240 U. S. 66. here it was contended that Skaggs could not recover because the injury resulted from his own act, or from an act in which he participated, but the Supreme Court pointed out that there were two brakemen in that case, Skaggs and Buchta, and that Buchta occupied a position which enabled him to know what plaintiff did not, and said: “It was plainly permissible to infer from the testimony that the two men were not in positions of equal advantage, and Skaggs was entitled to the exercise of reasonable care on the part of Buchta in observing and reporting the position of the cars.”
In Union Pac. R. Co. v. Hadley, 246 U. S., 330, the Supreme Court held that the defendant was negligent in the running of its trains, and hence the contributory negligence of plaintiff was not a bar under the act.
The case of Virginian R. Co. v. Linkous, 230 Fed. 88, re-argued in 235 Fed. 49, and certiorari denied in 242 U. S., 630, is quite analogous to this one. The engineer and conductor had received an order to meet and pass another train at Keever. Instead of stopping there, as directed, the engineer, with the conductor, first brakeman and fireman riding in the engine, went at full speed beyond Keever, where the train collided with the train they had been ordered to pass at Keever. All four of those employees were killed. The Circuit Court of Appeals said that it was insisted by counsel for plaintiff that plaintiff’s decedent had lost his life “as a result of a combined mutual, concurring and joint failure of these four men to fulfill their primary duty by executing the order to meet Ho. 33 according to its terms and as prescribed by the defendant’s rules, which was the controlling and proxi
In the ease of Great North. R. Co. v. Wiles, 240 U. S. 444, surpra, a draw-bar had pulled out, causing the train to stop instantly, and it was the duty of Wiles, who> Was a rear brakenian of a freight train, to at once go back and protect the rear of bis train. Instead of doing that, he remained in the caboose with the conductor, and he and the conductor were killed by a following fast passenger train. Although he was not responsible for the draw-bar pulling out, and the conductor was with him in the caboose, it was held that there could he no recovery, as there was nothing to- excuse Wiles’ negligence. In Davis v. Payne, supra, Davis was engineer in charge of an engine attached to a local freight which collided with a -train which had the right of way, resulting in injury -to himself, killing the engineer on the other train and injuring other employees. The court- said that “there was no intervening or concurrent act of negligence shown on the part of the carrier that in any way produced the injury complained of, or contributed to bring it about. He himself created the condition which brought about- the
“The writers do not understand that any decision of the Supreme Court of the United States thus far reported gives support to the notion that if two employees are each bound to perform exactly the same specific duty and both the right and the obligation of each to perform that single specific duty is equal to the right and obligation of the other, each one of •these two, who, acting in concert with each other, and each acquiescing in the conduct of the other, violates that single ■duty, which, though single was nevertheless imposed upon all, and therefore was common to all, can recover from the railroad company. To allow any one of such two or more employees to recover would be equivalent to holding that each of such two or more employees, though having acquiesced in the conduct of each other, and though having acted in con-cent, can say to the employer: “Although I was hurt because I failed to perform my specific duty, you are nevertheless liable for damages to me because another employee, acting in concert with me- and with my acquiescence, failed to' perform my duty for me.”
Amongst other cases which might he cited are: Kendrick v. Chig. & E. I. Co., 188 Ill. App. 172; Ellis’ Admr. v. Louisville, H. & St. L. R. Co., 155 Ky. 745, 160 S. W. 512; Ingram v. Atl. C. L. Ry. Co., 181 N. C. 491, 106 S. E. 565;
Of cases cited by appellee, we bave already referred to Campbell’s case, Skaggs’ case and Linkous’ case. He also cites Fitzpatrick v. Hines (Neb.), 179 N. W. 410; Grand Trunk R. Co. v. Lindsay, 201 Fed. 836; Authement v. Louisiana & W. R. Co., 147 La. 816; Cin. N. O. & T. P. R. Co. v. McGuffey, 252 Fed. 25; DeBaur v. Lehigh Val. R. Co., 269 Fed. 966.
Without citing other cases, it must be admitted that there are some differences of opinion expressed by the courts as to when the act of the employee is the sole cause of the result, but when the injured employee brought the injury upon himself, without some separate and independent act of another
The appellant only presses the exceptions to the rulings on the evidence as presented by the third and fifth bills- of exceptions. We find no error in the ruling on the third, and while we do1 not see the relevancy of the question in the fifth, it is at most a harmless error. It follows from what we have, said that in our opinion the plaintiff was not entitled to recover and hence the second prayer should not have been granted. In our judgment the plaintiff was not entitled to recover and the defendant’s first and second prayers should have been granted. Having reached that conclusion, the plaintiff’s second prayer should have been rejected and it becomes unnecessary to discuss his fourth prayer. Our conclusion as to the first and second, or either of them, must result in a reversal without awarding .a new trial. If we had not reached the conclusion stated we would have been of the opinion that there was error in rejecting the defendant’s fifteenth, and eighteenth prayers and modifying the seventeenth, which would have required a reversal, but not without granting a new trial.
Judgment reversed, without awarding a new trial, the appellee to pay the costs.
