Washington, Baltimore & Annapolis Electric Railroad v. Cook

Boyd, C. J., 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 ³²⁶ is a double track between Marley and Elvation, a siding at Saunders Bange, at Glenburnie' there are two sidings, one on each side of the main track, what is spoken of as Qromwell Siding, and a double siding at Ferndale. 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 ³²⁸ lie was asked: “You did not say anything to Dyson about this train during the entire trip ?” and his answer was: “It happened I asked for the time and I asked Mr. Dyson to look at the schedule and he looked at this piece of writing paper and copied from the schedule, and he said we have 3.45, and he being as old a man as he was in the railroad, and my being a younger man, I had confidence enough in him to think he noticed it properly, and I did not look at mine and no one else under the conditions, working as I was, and there would have been ample time to get to* Shipley, providing he told me the right time, but he did not tell me right. That is as oleai" as I can tell you how i-t happened.” 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 ³²⁹ the injury which resulted in the death of Hyson, we must, in determining this case, he governed by the effect of Johnson’s action or non-action. Although we have had several cases before us, under this act, the particular question now before us has not been hitherto passed on by u.s. 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.” ³³⁰ Buie 323 is: “Motormen and conductors will be held equally responsible for the violation of any of the rules governing the safety of their trains and must take everjr precaution for their protection, even if not provided for in the rules.

In case of doubt or uncertainty, take the safe course and run no risks.” (Italics ours.) 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 ³³¹ upon them.” In that case Wiles was in the caboose with the conductor, hut Ms' representatives, tvere not allowed to. recover : in this ease the conductor was in the vestibule with the motorman. Why should the latter’s representatives recover ? 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 ³³² this accident, of course, would have cleared the train, as we have already explained why it was out of his mind — by reason of the mistake of the motorman; and no one of