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 at 1:05 A. M., and "until said train No. 159 reached Garrison it had not been, nor could it be determined whether said train No. 159 would run beyond Garrison or would stop at that point."

The rules of the company provide, among other things, that "meeting order or orders conferring rights to the point where placed must not be sent for delivery to the trains of superior right at the point of execution, if it can be avoided."

"When it cannot be avoided special precaution must be taken by the traindispatcher and operators to insure safety, and the following notice will be incorporated in the order, viz.: Train gets this order at..

"There should be, if possible, at least one telegraph office between those at which opposing trains receive meeting orders."

Upon the arrival of No. 159 at Garrison at 1:05 A. M. on December 25, 1899, the train-dispatcher asked the telegraph operator and station agent at Bonita by telegram whether or not train No. 162 had arrived there and he promptly answered that it had not. The train-dispatcher then ordered the train crew of No. 159 to run extra from Garrison to Missoula, and to meet No. 162 at Carlan, and this order was received by that crew at Garrison. At the same time he ordered the crew of No. 162 to meet No. 159 at Carlan and sent this order to the operator and station agent at Bonita to deliver to them. He ordered a red signal displayed at Drummond to stop No. 159 so that the meeting point could be changed on its arrival at that station if necessary. These orders were complete at 1:18 A. M. At 1:20 A. M. No. 159 left Garrison and it arrived at Drummond at 1:57 A. M. and the traindispatcher was immediately informed. of this fact. He then inquired of the operator and station-agent at Bonita whether or not extra freight No. 162 had arrived at Bonita yet, and the latter promptly replied: "No sign of them yet." He then asked him if he was sure No. 162 had not passed, and he replied

"Yes." The train-dispatcher then repeated his inquiry and the operator and station agent at Bonita answered “Yes, I am sure freight 162 has not passed." Thereupon the train-dispatcher issued an order to the crew of No. 159 to meet No. 162 at Bonita and an order to the crew of No. 162 to meet No. 159 at Bonita and sent the former order to Drummond and the latter to Bonita. The crew of No. 159 received their order and proceeded with their train. It collided with No. 162 and the intestate, Dixon, was killed by the collision about four miles west of Drummond at 2:15 A. M.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

At the first hearing of this case the negligence of the local operator, at Bonita, who slept at his post and falsely informed the train-dispatcher that extra freight No. 162 had not passed his station, was conceded to have been the cause of the collision and of the death of the intestate, and the only question argued was whether or not this operator was fellow servant of the deceased, who was a fireman on that train. The Supreme Court decided that he was (Northern Pacific Ry. Co. v. Dixon, 194 U. S., 338), and thus disposed of the only issue that was then presented in this court. Since that decision was rendered counsel for the defendant in error has prepared another brief and argument in which he contends that although the negligence of the local operator may have been one of the causes of the accident, the negligence of the train-dispatcher was either the proximate cause of, or contributed to cause it. This contention presents two questions: (1) was the train dispatcher guilty of negligence which either caused or contributed to cause the injury? and (2) was the train-dispatcher the fellow servant of the fireman, or the vice-principal of the railway company?

That contention, that the lack of care of the train-dispatcher contributed to cause the injury is (1) that the accident itself and the finding of the court below that the fireman was not guilty 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.

TRAIN RULES

EDITOR FORUM-Will you kindly answer the following:

Order No. 10-To C. & E. of Eng. 496 at C: Eng. 496 will run extra from C to F and return to A.

Some of our men claim that Eng. 496 cannot return to where it has not been and others claim it can.

Parkersburg, W. Va.

J. W. WILSON. ANSWER-The word "return" used in this order means to turn back. We think the order is perfectly proper and that Eng. 496 can run extra Ĉ to F and return to A. It is all right for you to go to New York by the way of Washington and return via Buffalo. This, we think, is the sense in which the word is used in order mentioned.

EDITOR FORUM-Please give me your opinion on the following question:

No. 47, second class train, west bound, leaves A at 11 p. m. holding order No. 15, which reads: "No. 47 will wait at B until 8 a. m. for No. 60." No. 60 is a third class train, east bound. On arrival of No. 47 at B at 7 a. m., No. 47 receives order No. 16, reading: No. 47 and No. 60 will meet at C." What time can No. 47 leave B? I claim order No. 15 has not been annulled, fulfilled or superseded, and No. 47 cannot leave B until 8 a. m. We are working under standMEMBER DIVISION 275.

ard code.

Yoakum, Tex.

leave C until No. 47 gets there, but this is only partly true, for order No. 15 has changed the schedule time of No. 47 at B to 8 a. m. and No. 60 is free to arrange any work they may have at C accordingly. Then, should No. 47 be allowed to disregard order No. 15 because they thought it was not necessary to obey it, it would be delegating a power to trainmen that would prove dangerous.

EDITOR FORUM-Will you kindly give a decision on the following:

E is a schedule passing station for No. 1 to pass No. 15, both first class trains. The following order placed at C: "C. & E. all west bound trains: No. 1 will run 30 minutes late C to J." No. 15 gets a copy of this order at C. Can No. 15 leave E before No. 1 passes 15 on this order. Our rule 93-a says: "At schedule passing stations between trains of the same class, the train to be passed, unless otherwise directed by special order, will remain at such point until the expected train has passed." This has caused considerable discussion between the men. Some think the time order on No. 1 is sufficient for No. 15 to leave E and go to J for No. 1; others think No. 15 has no right to use time order to leave E ahead of No. 1. Kingston, N. Y. M. J. C.

ANSWER-Under your rules the runlate order is not authority for No. 15 to go beyond the passing point. The explanation under this form E order reads: "(1) and (2) make the schedule time of the train named between the stations mentioned, as much later as stated in the order, and any other train receiving the order is required to run with respect to this later time, as before required to run with respect to the

regular schedule time." You will note that this order is not a proper order to advance No. 15 beyond the passing point for the reason that No. 15 is a train of the same class and is not required to clear the schedule time of No. 1. No. 15 may be 30 minutes late, still they have a right under the rules to go to E, so that an order that No. 1 runs 30 minutes late does not relieve them from observing the passing point at E as they are not clearing the schedule time of No. 1 but are running to a fixed passing point, and the only proper order to advance them on would be form B, reading: "No. 1 will pass No. 15 at G." This gives the train another positive passing point in place of the positive passing point fixed by the timetable.

EDITOR FORUM-I am up against a real proposition that both Conductors and Engineers are divided on.

The following is the case as clearly as I can state it: No. 12, second class train, leaving A without any signals, arrived at B. No. 12 has a helper engine on rear of tráin and at B the helper engine becomes disabled. Conductor sets out the helper engine, caboose and part of train on siding which clears main line. He closes switch for main line, and leaves the tail lights burning and a Mexican brakeman in charge of train, claiming he told brakeman to hold all trains until he returned from C, where he went with head end of train, which was at top of hill, where helper is always taken off. I leave A following No. 12 about two hours and thirty minutes later with orders to run extra A to D with right of track against No. 11, extra 500 and extra 547 A to C top of hill, but I wait at B until 11:10 p. m. for No. 11, extra 500 and extra 547 north. I arrive at B at 11:10 p. m., find No. 12, helper engine and caboose with markers burning, in on siding, main line cleared and switch closed.

I hunt up the brakeman and ask what they are doing, He replies that they are doubling hill, and that he has no instructions about flagging or holding any one, nor has he a note from conductor of No. 12 to any train following No. 12 to remain at B for the return of No. 12's engine. I also ask engineer of disabled engine at B if he has any instructions to hold any train; his reply is that he has none and knows nothing of flag being left

there. I ask helper engineer when No. 12's engine left B, and from time they left until the time it was then, gave the engine doubling time enough to have gone to C and return and be well on the way back to C with second cut. After this information I figure if I stay at B and No. 12's engine has gone to C intending to get orders to return for their rear end, which they should do, that they could not get them account that I had left A before they arrived at C, consequently if I stay at B, No. 12's engine has no way to return to B against anything that might be following them and they have cleared main line and left no flag, and if I stay at B No. 12's engine can't return and No. 11, extra 500, No. 12 and myself are tied up indefinitely; consequently I proceed and about 2 kileomters north of C meet No. 12's engine coming flagging No. 11 and extra 500 to B against me. We did not hit, is best of

all.

A Mexican brakeman without a note in Mexico is not considered a flag. The Mexican brakeman told me he had no instructions to flag any one and told at the investigation that he told me so; also the conductor of No. 12 says that he did not give brakeman a note to hold any one at B for his return. There is also another short hill on this division of the National R. R. that all freight trains double, and a bulletin requiring trains doubling to place their rear end on siding and that their caboose will be a flag to hold all other freight trains until engine returns for rest of train.

This bulletin only applies to this particular hill, which is on another district of division. This would leave one to believe that a caboose at any other point would not be regarded as a flag. The extra 547 mentioned in this case was No. 12's helper engine that became disabled. I was extra 515 south. MEMBER DIVISION 261.

San Luis Potosi, Mex.

ANSWER-From our viewpoint and apparently under Mexican rules, No. 12 should have left a note with the Mexican brakeman, as they intended to return for rear of train without orders. In regard to the extra passing the rear of No. 12, we think it is poor policy for an inferior train to pass the rear portion of a superior train without special instruction to do so.