OREGON SHORT LINE & U. N. RY. CO. v. FROST, 74 F. 965

GILBERT, Circuit Judge. The defendant in error was the plaintiff in the court below in an action brought by her as the adminis-tratrix of the estate of James W. Frost, deceased, to recover dam? ages for his death. Frost was a locomotive engineer in the employment of the plaintiff in error on passenger train No. 5. On February 1, 1891, his train was running north from Ogden to Butte, and was due at Dillon at 2:37 p. m.

At 1:05 o’clock on that day the train dispatcher at the superintendent’s office at Pocatello had telegraphed an order to the operator at Dillon that train No. 5 should wait at Dillon until 2:45 p. m. for train No. 32. Train No. 32 was a mixed freight and passenger train, running south from Butte to Dillon. The regular meeting point of these trains was at Dillon, but on the date aforesaid train No. 32 was behind time, and, in order to avoid its long delay at Apex, the order was given. Train 32 was at Glenn, a station 18 miles north from Dillon.

The order of the train dispatcher was received at Glenn in due time, and was delivered to the conductor and engineer of the train. Under the order so received, train No. 32 proceeded towards Dillon, upon the supposition that train No. 5 would wait there, as directed by the train dispatcher. The operator at Dillon received the order 32 minutes before train No. 5 was due there, but he neglected to warn it on its arrival. It was his duty, on receiving such an order, to display a red signal, which would indicate to train No. 5 that there were orders for it.

It was also his duty, under the rules of the company, after receiving such order and displaying the red signal, to reply to the train dispatcher, “Bed displayed,” but he was not to send such reply until he had in fact displayed the signal, and this it was his duty to do immediately on receipt of the order. The order was laid aside by him, and forgotten, and he made no answer that he had displayed the red signal, as required by the rules. Upon the arrival of train No. 5 at Dillon, receiving no special order that it should not proceed on regular

schedule time, it proceeded on its way, stopping at the water tank, a short distance frpm the station, for water, and then resuming. It had gone but a short distance, when it met train No. 32. In the collision Frost was injured, and eight days afterwards he died from the effects of the injury. This case presents the important question whether or not the local telegraph operator at the station, who receives and delivers the orders of the train dispatcher, is the fellow servant of the employés of the railroad company in charge of the train.

The court charged the jury that it was the duty of the ráilroad company to give notice that it had changed the time of running the trains, and ihat, if it intrusted that duty to the telegraph operator, his acts were the acts of the company, and that if he was negligent in this matter it was the negligence o'f the company. It is conceded that the train dispatcher, in giving notice of a change in the running of trains, acts for and in behalf of the railroad company.

He is in that respect a vice principal, not because of his attitude to other employés as their superior, nor because he has charge of a department, but because of the nature of the duty which he discharges. He is, for the time being, clothed with the responsibility which rests upon the company to furnish its employés a safe place of operation. The ordinary running of the train is established by a fixed schedule, of which all operatives have notice, and by which their acts must be governed.

When occasion arises to disturb the regular schedule, the duty rests upon the company to give timely notice to those that are to be affected thereby. This it is the office of the train dispatcher to do. But when he has given that information to a local operator, is that duty discharged, or does there rest upon the company tlie further obligation to see that all of its servants through whose hands that message goes on its way to the train employés shall deliver it as given, and that in ease of any failure in the line of communication the company shall be liable for the resulting injury?

In support of the latter view it is argued that if the duty to notify the train operatives of a change in the time-table is personal to the company, and cannot be delegated to a servant, so as to excuse the company from liability, it follows that such power, since it may not be delegated to one servant, may not be delegated by him to another, and that the reasons which lead to the conclusion that the train dispatcher is a vice principal lead directly to the further conclusion that the local telegraph operator stands in the same attitude to the company, and (hat the duty the company owes of furnishing a safe place of operation to its employés cannot be discharged short of actual notice to those who are to be affected thereby, and whose personal safety is dependent thereupon.

After a careful consideration of the question and of the strong reasons that may be urged in support of either view of this proposition, it is our conclusion that the better doctrine is that the local telegraph operator is (he fellow servant of those who are in the control and management of the train. It is evident, and the court: will take judicial notice of the fact, that a disturbance in the regular time

schedule of trains is frequent and necessary in the operation of all railroads. It then becomes necessary to issue special orders for their direction. Conductors, engineers, and brake-inen have knowledge of that fact, and they know when they enter into the employment of the railroad company that their notice of such orders must come through the local telegraph operator at the station, and that they incur the risk of accident through Ms negligence or mistake. The special orders issue, in the first instance, from the train dispatcher.

It is obviously impossible for him to give personal notice to all who are to be governed thereby. The orders must, of necessity, be conveyed to some one in behalf of the others. The local telegraph operator, the conductor, The engineer, and the brakemen are all engaged in a common employment,- — that of moving the train. The operator, it is true, is subject to no personal risk from any change in the time card, but that fact is not a controlling one in deciding who are his fellow servants. There must be some point where the responsibility of the company ceases.

If it does not cease at the time when information is given to the operator, where shall it cease¡? Could it be said that a conductor who received from the operator a message1 from the train dispatcher, yet who failed to guide his action thereby, stands in the relation of vice principal to the conductor, engineer, or brakeman of another train, who may be injured by bis negligence? or that, if the operator should receive instructions from the train dispatcher to send out a flagman to signal an approaching train, the company is responsible for the negligence of such flagman in failing to carry out such instructions?

It seems just in principle to hold that the company has discharged its duty when it has given information to one of its servants who is engaged in the common employment of the others that are to be affected thereby, and has instructed him to notify his co-employés, and that when the company has exercised due' care in selecting such local operator in the first instance, and has not been negligent in employing or retaining him in his office, it has discharged its duty, and that such operator stands in the attitude of a fellow servant to the trainmen. This doctrine is sustained by the clear weight of authority.

The leading case in its support is Slater v. Jewett, 85 N. Y. 62. There the question arose whether the operator and conductor were fellow servants of the injured servant, in the same common employment. It was held that the telegrapher, whose duty it was to receive and give information of the whereabouts of trains and communicate orders to those controlling them, was closely connected with the work of the conductor, which was that of moving the trains, and that both were engaged in the same branch of the defendant’s business.

The court said: “It is not true that on an occasion like this it is the duty of the master, or a part of his contract, to see to it as with a personal sight and touch that notice of a temporary and special interference with the general time-table comes to the intelligent apprehension of all those whom it is to govern in the running of approaching trains. It is utterly impracticable so to do, and a brakeman or a fireman on a train knows that it. is as well as any person connected with the business.

He knows that trains will often and unexpectedly require to be stopped, and that such orders must, from the nature of the case, be given through servants skilled in receiving and transmitting them. If there is due care and diligence in choosing competent persons for that duty, a negligence by them in the performance of it is the risk of the employment that the employe takes when he enters the service, Such a variation, and .the giving notice of it, is not like the supply of suitable machinery or of competent and skilled fellow workmen.

It is the act of an hour, or of an instant, which, for any useful effect to be got from it, must be done at the instant, and that, too, from a distance.” - Tbe doctrine of Slater v. Jewett is not modified, as contended by tbe defendant in error, by tbe later decision of tbe same court in Sheehan v. Railroad Co., 91 N. Y. 332. That was a case where tbe train dispatcher telegraphed a local operator instructions to bold a certain train for orders.

Instead of bolding tbe train for orders, tbe operator held it until a certain other train arrived at bis station, when be permitted it to proceed, in consequence of which a collision occurred.

Tbe decision in tbe court of appeals was that, under all tbe circumstances, tbe trial court did not err in submitting to tbe jury tbe question of the company’s negligence, since tbe jury might properly have found negligence from tbe fact that tbe orders were not sent directly to the conductor of tbe train, which was to.be governed thereby, but were communicated to a third person, the operator, who was instructed to bold tbe train for orders.

Said tbe court: “It is one thing for the orders of the master to go by report or hearsay to the servant, and quite another when they are received by him directly, and without an intervener.” Tbe circuit court of appeals of tbe Sixth circuit, in deciding tbe precise point bere involved, said, and correctly said, of tbe telegraph operator: “He and the engineer and the conductor work together, at the samp time and place, íor a common employer, with an immediate common object, namely, the proper running of trains.

It is essential, in the operating department of a railroad company, that there should be provision for communicating to those in charge of different trains the whereabouts of other trains, to avoid collision. This information is given by means of the general time-table and general rules for the running of trains with reference to each other, which the employes in charge of each train are obliged implicitly to obey. But it often happens that the general time-table must be varied from, and these variations must be communicated to those in charge of trains.

This is effected usually by telegraphic orders from the superintendent or the train dispatcher, who has supreme control of the running of trains. The information is also communicated by means of flagmen, by means of torpedoes, by red lights and green lights upon trains, by the block-signal system, and in other ways.

The subordinate employes, whose duty it is to transmit the orders of the officer in control, or to give information as to the presence of trains upon any part of the track, without special orders, arc engaged at the same time and place with the persons operating the train, in a common employment, having an immediate, common object, namely, that of the running of trains, and therefore are fellow servants.

The man who makes the signal at the station to the engineer on the approaching train to stop is as much engaged in the running and operation of that train as the flagman sent out ahead to signal the condition of a switch. Neither exercises the discretion or the judgment or the control of the master, but each contributes his part to the safe running of the train. There can be no separation of the signal department and the operating department, for the employds engaged upon the train, in the actual, manual operation of the train, are expected to be part of the signal department of the company.

The man who puts out the green light at the bock of the train, to indicate that a train is following. communicates to every station agent, every conductor, and every engineer who sees it knowledge upon which they, each of them, must act; and yet it can hardly be said that the brakeman, in displaying this green light, is acting in a different department from the man who opens and closes the throttle valve of the engine.’’ Railroad Co. v. Camp, 13 C. C. A. 233, 65 Fed. 952-964. Of similar purport are McKaig v. Railway Co., 42 Fed. 288, and Reiser v. Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175.

The cases holding otherwise are Railroad Co. v. De Armond, 86 Tenn. 78, 5 S. W. 600, and Madden’s Adm’r v. Railroad Co., 28 W. Va. 610, neither of which, however, is authority upon the question here considered, for they are each based upon the rule of the different department system which obtains in those states, under which it is held that the local telegraph operator is not the fellow servant of the trainmen; not, indeed, upon the ground-that he is charged with the performance of the master’s duty as to them, hut because he is held to be a serv-an Í: in a different department of service from theirs.

It is urged that this court has expressed a different view of this question in the case of Railroad Co. v. Charless, 2 C. C. A. 380, 51 Fed. 562. The question decided in that case was whether or not the complaint had stated facts sufficient to constitute a cause of action. One of the several grounds of negligence alleged in the complaint was that a telegraph operator at a certain station was aware of the peril to which the plaintiff was exposed, and had negligently failed to notify him thereof.

In referring to this allegation the court said: “It was the duty of the company, as admitted in its amended answer, to-furnish its employes engaged in maintaining its track and roadbed with information concerning the movements of trains over the sections on which they were employed. In the present ease it is alleged that this duty was required to be performed by the telegraph operator at Cheney, but the designation of the official is immaterial. It was a direct, positive duty which the company owed such employes as were exposed to danger by the movement of trains. In Lewis v. Seifert, 116 Pa.

St. 628-647, 11 Atl. 614, it was determined that a train dispatcher, wielding the power and authority of a railroad company in the moving of trains, in the changing of schedules, or the making of new ones as exigencies required, is not a fellow servant with a train employe.” It is clear from this quotation from the opinion that the court understood the allegation of the complaint and the admission of the answer to place the operator therein referred to substantially in the attitude of a train dispatcher, whose duty it was to order the movement of trains, and not in that of a local operator, through whom the orders of a superior were to be delivered.

The question of the present case was, therefore, not involved, and there is nothing in the opinion to conflict with the conclusion which we have reached.

It is urged that, in any view of the facts of the case, there was negligence on the part .of the defendant, since the rules of the company required an operator receiving special orders concerning the movement of trains to display a red signal immediately on receipt of the order, and to telegraph back to the train dispatcher, “Bed displayed,” and that in this instance the train dispatcher knew of the failure of the operator to display the red signal, for the reason that he received no such response to his dispatch, and that he was negligent in that he made no complaint to the operator, <or inquiry as to the reason of the omission.

The company’s negligence in this respect, however, was not the ground of recovery laid in the complaint. The allegations of negligence are confined specifically to the action of the local operator at the station. The question of the negligence of the train dispatcher was not referred to in the pleadings, nor was it submitted to the jury. The charge of the court permitted them to consider the negligence of the local telegraph operator only, and not that of the train dispatcher. They were instructed that, if they found the operator negligent, it was the negligence of the company.

It follows from these views that the judgment must be reversed, at the cost of the defendant in error, and the cause remanded for a new trial.