BOBTHERN PAC·.R. CO. 1.1. CAVANA.UGH.
CO. 1.1. CAVANAUGH.
(Circuit Court 01 AppeaZs, E41hth Circuit. July 25, 1.892.)
RAILROAD COMPANIES-INJURY TO EMPLOYE-FELLOW SERVANTS.
A brakeman received injuries in a collision caused by the negligence of e. con· ductor and engineer in disobeying the train dispatcher's orders. Held, the road company was liable. Railroad Co. v. Ross, 5 Sup. Ct. Rep. 184,112 U. S. 877, followed.
In Error to the Circuit Court of the United States for the District of Minnesota. Affirmed. Statement by SANBORN, Circuit Judge: This was an action brought by the defendant in error against the Northern Pacific Railroad Company for damages alleged to have rP,sulted to him from the negligence of the corporation. A jury was waived, and the case tried by the court upon a written ,stipulation, from which the following facts aIJpear: The plaintiff below was a brakeman in the emf ployment of the defendant corporation on November 4, 1889, upon one of defendant's freight trains, known as "No. 14," in the state of Washington, which was being operated on telegraphic orders. He had been employed by defendant for some time as a brakeman, and was a competent brakeman, familiar with his duties, which were those ordinarilyappertaining to. the position of brakeman on a railroad The stations on defendant's road, so far as material in this case, are, commencing at the west and running thence eastward, Sprague, Tyler, Cheney, Marshall .Junction, Spokane Falls, Trent, Hauser Junction, and Rathdrum. Train No. 14 was running eastward, and when it had passed Sprague; and was proceeding towards Tyler, another of defendant's trains,known as "No. 13," which was also operated on telegraphic orders, had passed was running thence westward. Thereupon the train dispatcher at Sprague issued a telegraphic order, which was in due season delivered to the conductor and engineer of each of these trains, to meet and pass each other at Marshall Junction. This train dispatcher had absolute control in the matter of directing where said trains shQuld meet and pass each other, and neither the engineer nor conductor of either of these trains had any power to change the place of meeting to any other point. One of the rules of the defendant under which these trains were being operated was:
"Conductors will be held responsible for the safe management of theil' trains and for the strict performance of duty on the part of the men engaged with them. In order to secure effecti ve service. conductors must make them. selves familiar with the duties req uired from other train employes, and see that they are fully performed."
When train No. 14 reached Marshall Junction, it stopped a few moments, and then pulled out and started eastward, without waiting for train No. 13, in violation of the telegraploic order, and soon collided
i", .. l
with train No. 13, and damaged the plaintiff in the of $2,001 by inflicting persoMI injuriea'tlpon>bioh Thenegligende of the engineer and conductor of train 14 was the proximate cause of the accident, and they were the telegraphic order, liildletlving Marshall Junction before train No. 13 metandpassed them. Upon these agreed facts the courL below ordered judg6.1kti'tfor the plaintiff for the stipulated damages, to Judgment pursuant t(Mheorder, to reverse whichthis writ of error was sued out. The 'ill in ordering ju(jgment for the
' . John O. Bullitt, Jr., and Tilden R. Selmes, for plaintiff in error. O. Wellington and W.:WlErwin, iMdefendant in error. Before CALDWELL and SANBORN, Circuit Jndges, and SRIRAS, District Judge.
Judge, ,after stating the facts as above, delivered the opinion of ,the court. The facts in this case bring it clearly ;within the decision of the premecotirtin Railroad 00. v. Ross,H2 U. S. 377,5 Sup. Ct. Rep. 184, and the judgment below is affirmed, with costs.
'CENTRAL RAItROAD OF NEW JERSEY t1. STOERMER.
(Oircuit Court oj'Appeals, Second Oircuit. JUly 2O,1S92.)
. In an acMon against a rliilroad company for personal injuries to plaintiff, an averment in' the com.plaint that one of defendant's trains, at the' place where plaintiff was elDployed, was suddenly started by defenliant or its agents, without notice to plaintiff, causing tbe inju,rias cQmplained of, was controverted by a general.denial, but aO'avarment tbat defendQntwas, at the' same time and place, "operating a railroad," was expl'essly it appe,ared in proof that only one railroad was being operated at tbat time and place. Held, tbat defendant could not be permitted to contend that tbe railroad was D<lt operated by itself. It. !'ER80N4L lNroI;\Y-:,FELLowBIRV.lNT-N'EGLIGBNCE. While a qoal train of qefe\l4ant railroad company, wbose tracks ran over tbe docks of a coal company, wall delivering coal to the latter company, a brakeman of the coal company, engaged in' coupling cal'S 011 tbe train, was injured by the negli. gence of defendant's engine\lr.Held, that 8!Jchengineer was not a fellow employe of the iRjured brakeman, hen.ot being under the power and direction of the coal QQmpany. engaged exclush',ely.in doin/.f its work or "lent" to it for the occasion. EWlln v. Lippincott, 47 N. J. Law,192; Johnson v. BQston,US Mass.n4; Rourke v, White M08s Colli.erll 00., 46 Law J. C. P. 288,-distinguished.
Error to the Circuit Conrt of the United States for the Southern District of New York. : Action byPatll O.lkSt6ermer against the c,entral :Railroad of New Jersey. Judgment for plaintiff. Defendant appeals. Affirmed. This action was brought by Stoermet, 8. brakeman in the employ of the Lehigh &Wilkesbarre OoalCompanyat Bergen point, N. J., to raco\"er damages :for personal iqjuriesalleged to have been sustained by