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and the boys have been doing something right along, but as they say, I am a back number and here I fall down. Still, it is safe to say it requires the higher mathematics to figure out their length of trains. But no kicking, boys; I guess you must take your medicine, as it seems to be the same everywhere.
Brother McBride is at present in the city hospital as the result of a break-in-two of train and bad case of buckling. We hope he will be out and again on duty before this is read. C. H. A.
Editor Railway Conductor:
In looking over The CONDUCTOR, I see the good spirit of Brother S. C. Benford, of Philipsburg, Pa., in behalf of the age limit of brother conductors. I am in favor of the age limit. I think it is a good thing. But there is another age limit in existence, that is called the “Brown System," it is short and bitter, and no pension at the end of it. Brother readers, have you come in contact with it? If so, give us your views in regard to the aged brother, in long servitude and faithfulness of life to the company he works for. He is broken down, worn out and ready to die; if the good Lord sees fit to call the death warrant on him he must go; the long hard earnings of the Brother must be left behind for some one else to enjoy. Now, if a Brother lives to pass the age limit on the road that he works for, and the company sees fit to pension him for the rest of his life, should not the O. R. C. make a law to protect the Brothers in life? I would say,
from the age of 60 or 65, and let him enjoy some of his insurance laid up in store while in the prime of life. This problem is worthy of attention.
W. A. Doran. Providence, R. I.
Editor Railway Conductor:
Will say Division 276 is still alive with a new set of officers, so to speak. Our Division is doing nicely. One of our members, J. W. Usher, has been recently appointed trainmaster of the Colorado Division with headquarters at Goodland, Kansas, and am free to say we all think it is the wisest appointment which could have been made from the ranks.
E. J. Denney. Goodland, Kans.
Editor Railway Conductor:
R. B. Hawkins Division 114 deemed it wise not to elect a correspondent for The CONDUUCTOR, but let each member write when he desired.
November 5th it was our privilege to be present with about one hundred of our members and about 22 visitors at the election of officers for 1906. The officers-elect are an able lot of boys and they will prove by their management of our affairs, I am sure, that the Division made a wise selection. As usual, Brothers Chislet, Conner, Lane, Niebaum, Miller, Walters, and others too numerous to mention, were there and gave us wise counsel and wholesome advice. I certainly wish all our members could have been at that meeting to hear those Brothers.
It was also our pleasure to be with Division 471 November 26th, when they held their election. It would be hard indeed to find a more able, conservative and wise body of men to govern a Division than those selected by No. 471 to look after their interests for 1906. We look for a very prosperous year under their management.
November 29th, with a party of fifty-seven under the leadership of Brother Chislett (the king). we left Pittsburgh for Mexico to attend the thirtysixth annual convention of the old reliable conductors' insurance association, to be held in the city of Mexico December 7th, 1905. We spent one day in St. Louis and left there at 9:30 p. m. with two hundred on board of special train over the Iron Mouutain. I have never enjoyed the company of a more jolly crowd than were in this party. In fact, under the leadership of W. 0. Beckley of St. Louis and Chislett (the king) of Pittsburgh, we are like one large family out for a good time, and we are having it, you bet!
A MEMBER OP 114.
Editor Railway Conductor:
In reading the September CONDUCTOR I was much interested in the letter of Brother Quisenberty of Virginia. It is no doubt true that we are often forgetful not only of the fraternal obligations we have taken on ourselves, but of the golden rule of a Higher Authority. When our work is done we settle down to take our ease without thought for the weary bodies or sad hearts about us to whom we owe a duty, and I hope the words of Brother Q. may stir the Divisions to action.
But I am glad to be able to give a different account of my own experiences under somewhat similar circumstances. For three weeks this fall I was in the hospital at Bradford, Pa. Our Chief Conductor notified the Bradford Division of my being there and there was prompt response.
Three of the Brothers called on me and more may have done so. A fine basket of fruit, cigars and literature came with the compliments of Division 200. If I could not have all the fruit that was the fault of the hospital rules, and I hope the nurses had it and enjoyed it, for they were good to me. I am glad to give this testimony both in justice to Division 200 and to show that there are Brothers whose hearts are not only in the right place but where actions show it.
Our freight business has been steady all summer
Editor Railway Conductor:
Our little 0. R. C. Division, away up here in Vermont, is composed of 31 members, with the surety of more soon. It meets the third Sunday in each month at Newport, a thriving little town of about 3,000 inhabitants, situated at the head of Lake Memphremagog, a distance of about four miles from the Canadian line. Newport is also the junction of the Boston & Maine and the Cana. dian Pacific railroads.
We take much pride in our Division and everything is working smoothly.
F. A. S. T. Lyndonville, Vt.
Master and Servant—Telegraph Operator The burden in such cases is always
Fellow Servant of Members of Train on him who alleges that the master Crew.
was guilty of casual negligence to esA local telegraph
operator whose tablish that fact. A finding that an acduty it is to gather and give information cident happened and that the servant to the train dispatcher relative to the injured was not at fault does not susarrival of a train at his station to en- tain this burden, because the accident able the dispatcher to formulate orders may have been unavoidable, or may for the movement of other trains, is a have resulted from the negligence of fellow servant of the train operatives in fellow servants or from other causes for giving such information, so that the which the master is not liable. master is not liable to them for injuries
Master and Servant-Meeting Orderscaused by an erroneous order of the dis
Rules of Company Construed. patcher induced by false information
The rules of a railroad company that given by the local operator.
meeting orders must not be sent for Master and Servant-Negligence—Res delivery to trains of superior right at the
Ipsa Loquitor (the thing speaks for it- points of execution if this can be avoided self) Inapplicable.
and that there should be, if possible, at The doctrine, res ipsa loquitor, is in- least one telegraph office between those applicable to negligence cases arising a which opposing trains meet, do not between master and servant, because constitute a peremptory prohibition and the possible causes of acidents during command, but except cases in which service are many, for some of which an ordinarily prudent man would deem the master, and for others of which the it reasonably safe in the light of the servant, is responsible, and the happen- knowledge which the dispatcher has to ings of an accident does not indicate send a meeting order for delivery to a to which class its cause belongs.
train of superior right at the point of ex
ecution, or to send meeting orders to
May Rely and Act on Local Operator's
The movement of freight trains by telegraphic orders based on information relative to the location of the trains upon a railroad gathered and telegraphed by local operators, or station agents, to the train dispatcher, is a rational, careful and approved method of operating a railroad.
It is not a lack of ordinary care for a train dispatcher to believe, rely and act upon such information, although it shows that an extra freight train has not reached a given station several hours after it was due to pass it.
STATEMENT. The defendant in error, as administratrix of the estate of Chauncey A. Dixon, brought this action against the Northern Pacific Railway Company, as she was authorized to do by the statutes of the State of Montana, to recover damages for the death of her son Chauncey, which she alleged was caused by the negligence of the plaintiff in error.
The parties waived a jury and made an agreed statement of facts upon which the court rendered the judgment against the company, which is here challenged. The facts material to the determination of the questions now presented are these: Dixon was a fireman employed by the company in operating extra freight train No. 162, and he was killed on December 25, 1899, by means of a head-end collision of that train with extra freight train No. 159.
The railway company was operating its railroad in Montana. It had made and promulgated time tables for its regular trains, and had adopted reasonable rules for the operation of all its trains. The time tables did not and could not provide for the running of extra trains. The railway company had in its employment a train-dispatcher at Missoula,
in the State of Montana, who had general power and sole authority to make and promulgate orders for the running of those trains, which were not governed by the time tables, on the division of its railroad on which this collision occurred. A large proportion of its trains on this division were run as extra trains, and the times of their arrival and departure were not shown on the regular time tables, but their movements were made upon telegraphic orders issued by the train-dispatcher, upon information furnished by telegraph to the train-dispatcher by its station agents and operators along the line of the railroad. All these facts were well known to the intestate, Chauncey A. Dixon.
The main line of the railroad extends from Missoula east to Helena through Bonita, 26 miles east of Missoula, Carlin, 33 miles east of Missoula, Drummond, 53 miles east of Missoula, and Garrison, 74 miles east of Missoula. It has but a single track. This railroad has a branch which extends in a southeasterly direction from Garrison to Butte. On the night of December 24, 1899, No. 162 was running east on the main line from Missoula to Helena, and No. 159 was running northwest on the branch line from Butte to Garrison. These trains were running under special schedules not included in the time tables, and under the telegraphic orders of the traindispatcher at Missoula, in accordance with the rules of the company.
No. 162 left Missoula for Helena at 10:20 P. M. on December 24, 1899. It arrived at Bonita at 12:35 A. M. on December 25, 1899, and left there at 12:50 A. M. on that day.
It was the duty of the telegraph operator and station agent at Bonita to observe the movement of trains passing through this station and to advise the train-dispatcher at Missoula of their movements. But he was asleep when this train passed his station, and he did not know of or report its passage. The only telegraph offices open during the night between Missoula and Garrison were those at Bonita and Drummond. When No. 162 left Missoula, and when it left Bonita, No. 159 was still on the branch line between
Butte and Garrison, where it arrived “Yes." The train-dispatcher then reat 1:05 A. M., and "until said train No. peated his inquiry and the operator and 159 reached Garrison it had not been, station agent at Bonita answered "Yes, nor could it be determined whether said I am sure freight 162 has not passed." train No. 159 would run beyond Garri Thereupon the train-dispatcher issued an son or would stop at that point."
order to the crew of No. 159 to meet No. The rules of the company provide, 162 at Bonita and an order to the crew among other things, that "meeting or of No. 162 to meet No. 159 at Bonita der or orders conferring rights to the
and sent the former order to Drumpoint where placed must not be sent for mond and the latter to Bonita. The delivery to the trains of superior right crew of No. 159 received their order and at the point of execution, if it can be proceeded with their train. It collided avoided.”
with No. 162 and the intestate, Dixon, “When cannot be avoided special was killed by the collision about four precaution must be taken by the train miles west of Drummond at 2:15 a. M. dispatcher and operators to insure safe SANBORN, Circuit Judge, after stating ty, and the following notice will be in the case as above, delivered the opinion corporated in the order, viz.: Train of the court. · gets this order at..
At the first hearing of this case the
negligence of the local operator, at Bon“There should be, if possible, at least ita, who slept at his post and falsely inone telegraph office between those at formed the train-dispatcher that extra which opposing trains receive meeting freight No. 162 had not passed his staorders.”
tion, was conceded to have been the Upon the arrival of No. 159 at Garri cause of the collision and of the death son at 1:05 A. M. on December 25, 1899, of the intestate, and the only question the train-dispatcher asked the telegraph argued was whether or not this operator operator and station agent at Bonita by was fellow servant of the deceased, who telegram whether or not train No. 162 was a fireman on that train. The Suhad arrived there and he promptly an preme Court decided that he was (Northswered that it had not. The train-dis ern Pacific Ry. Co. v. Dixon, 194 U. S., patcher then ordered the train crew of 338), and thus disposed of the only issue No. 159 to run extra from Garrison to that was then presented in this court. Missoula, and to meet No. 162 at Car Since that decision was rendered counlan, and this order was received by that sel for the defendant in error has precrew at Garrison. At the same time he pared another brief and argument in ordered the crew of No. 162 to meet which he contends that although the No. 159 at Carlan and sent this order to negligence of the local operator may have the operator and station agent at Bon been one of the causes of the accident, ita to deliver to them. He ordered a the negligence of the train-dispatcher red signal displayed at Drummond to either the proximate cause of, stop No. 159 so that the meeting point or contributed to cause it. This concould be changed on its arrival at that tention presents two questions: (1) station if necessary.
These orders were was the train dispatcher guilty of neglicomplete at 1:18 A. M. At 1:20 A. M. gence which either caused or contribNo. 159 left Garrison and it arrived at uted to cause the injury? and (2) was Drummond at 1:57 a. M. and the train the train-dispatcher the fellow servant dispatcher was immediately informed of the fireman, or the vice-principal of of this fact. He then inquired of the the railway company? operator and station-agent at Bonita That contention, that the lack of whether or not extra freight No. 162 care of the train-dispatcher contributed had arrived at Bonita yet, and the latter to cause the injury is (1) that the accipromptly replied: "No sign of them dent itself and the finding of the court yet."
He then asked him if he was sure below that the fireman was not guilty No. 162 had not passed, and he replied of contributory negligence raise the le
gal presumption that the accident was caused by the negligence of the railway company, (2) that the failure of the train-dispatcher to notify the crew of extra freight No. 162 that they would meet extra freight No. 159 was casual negligence, and that (3) the sending of the final order to the crew of No. 162 at Bonita to meet No. 159 at that place was a violation of the rules of the railway company and a negligent act of the train-dispatcher which contributed to the injury.
But the doctrine, res ipsa loquitor, is inapplicable to cases between master and servant brought to recover damages for negligence, because there are many possible causes of accidents during service, the risk of some of which, such as the negligence of fellow servants and the other ordinary dangers of the work, the servant assumes, while for the risk of others, such as the lack of ordinary care to construct or keep in repair the machinery or place of work the master is responsible. The mere happening of an accident which injures a servant fails to indicate whether it resulted from one of the causes the risk of which is the servant's or from one of those the risk of which is the master's, and for this reason it raises no presumption that it was caused by the negligence of the latter. In such cases the burden of proof is always upon him who avers that the negligence of the master caused the accident to establish that fact, and a naked finding, as in this case, that the accident occurred and that the servant was guilty of no negligence which contributed to cause his injury, is insufficient to sustain this burden, for there are many other causes than the negligence
of the master and that of the servant, such as the negligence of fellow-servants and latent and undiscoverable defects in place or machinery, which may have produced it. The happening of the accident and the absence of contributory negligence of the servant constitute no substantial evidence of the casual negligence of the master and are insufficient to support a finding or judgment against him for the injury which resulted from it.
The fact is that it is clear beyond all reasonable doubt that the proximate cause of this accident was the negligence of the local operator, who slept at his post, and falsely informed the dispatcher that No. 162 had not' passed his station. That untrue statement' was the sole cause of the meeting orders issued by the dispatcher, and of the accident which resulted from them. In the light of that statement, upon which it was his right and his duty to rely and to act, the acts of the train dispatcher were rational, prudent and free from any lack of ordinary care and no judgment against the company can be sustained on account of them.
The conclusion that the train dispatcher was guilty of no negligence renders it unnecessary to consider or to determine the question whether or not he was a fellow servant of the fireman, and that issue is reserved for consideration at some future time, when its determination shall become necessary to the decision of some living issue. The judgment of the Circuit Court must be reversed and the case must be remanded with instructions to render a judgment upon the agreed statement of facts in favor of the defendant in the court below, and it is so ordered.