Whittle v. Denver & Rio Grande Railroad

51 Colo. 382 | Colo. | 1911

Mr. Justice Gabbert

delivered the opinion of the court.

The only question presented for determination is, whether or not the defendant is responsible under the statute for the negligence of its agent at Swallows. According to the averments of the complaint, defendant’s trains were run and conducted from point to point along its road by the employes in immediate charge thereof, under the directions of its train dispatcher, communicated to such employes by its station agents, to whom such directions were sent, by means of signals displayed, and delivering to the conductors and engineers of its trains the directions intended to advise them, among other things, where the trains they were operating should meet and pass other trains. Had it been the purpose of the statute to limit its provisions to the employes in the immediate charge of a train, it would have so declared, instead of using the expression “any officer, agent, servant or employe whilst running, conducting dr managing any * * * train of cars.” “Managing,” as defined by Webster, is “to have under control and direction * * * to guide.” The employes in the actual charge of a train stop, start and advance it, and in so doing are running, conducting and managing it; but according to the averments of the complaint they are not in the absolute control or management of the train which they are running or conducting. On the contrary, they advance, stop and start their trains under the directions of the train dispatcher communicated to them by its station agent, to whom such directions are sent, by means of signals displayed and delivering to them the directions of the dispatcher; so that the movement of trains is directed and controlled (1) by those who direct their movements; and (2) by the employes whose, duty it is to run their trains in obedience to such directions.

The orders of the train dispatcher can only become effective, and his control over trains exercised, by the agent to whom such orders are sent performing the acts which his duties require. Where he has * orders for delivery to a conductor and engineer for their guidance in running their train, he is thereby charged with directing its movements in the manner his duties impose. To the extent that his duties require him to control or direct the movements of a train he is certainly “managing” it. If he fails to discharge these duties, the statute is violated. It was the duty of the agent at Swallows, when he received directions from the train dispatcher advising the conductor and engineer of the train upon which plaintiffs’ son was riding that they should meet and pass the train approaching from the opposite direction at Beaver instead of at Adobe, to have displayed the “stop” signal, and delivered to the conductor and engineer the directions he had received from the dispatcher. To this extent, and for these-purposes, the train in question was under his control. The- object of the directions sent to him was to prevent the collision that occurred. Had he exercised that control and direction over the train which his duties required, it would have been prevented. From the language of the statute it seems clear that it embraces an employe whose duty it is to control or direct the movement of a train.

The judgment of the district court is reversed, and the cause remanded with directions to overrule the demurrer.

Judgment reversed.

Mr. Justice Musser and Mr. Justice Hill concur.