US SUPREME COURT DECISIONS

A brakeman on a regular train of a railroad and the conductor of a wild train on the same road are fellow-servants, and the railroad company is not responsible for injuries happening to the former by reason of a collision of the two trains, caused by the negligence of the latter, and by his disregard of the rules of the company. chanrobles.com-red

Page 167 U. S. 49

This was an action originally brought in a court of the State of Washington, and which was removed into the Circuit Court of the United States for the District of Washington.

The plaintiff, in his complaint, alleged that, on the 7th day of December, 1892, while in the employ of the Northern Pacific Railroad Company as a brakeman, he received personal injuries of a severe character, occasioned by the negligence of the defendant company. The plaintiff recovered a verdict in the sum of $21,600, which was reduced, upon the election of the plaintiff to avoid a new trial, to the sum of $7,500, for which judgment was entered. The case was taken to the Circuit Court of Appeals of the Ninth Circuit, where the judgment of the trial court was affirmed. The case was then brought to this Court on a writ of error to the judgment of the circuit court of appeals. 67 F.8d 1. The principal facts of the case are thus stated in the opinion of the circuit court of appeals:

"The collision occurred about midnight. The first train was a regular local freight train, running on schedule time, under the management, control, and direction of the conductor. The second train was running under telegraphic orders, without any schedule or timecard, known in railroad parlance as a 'wild train.' At Moscow, a station on the railroad, the second train was standing upon the track when the first train left that station. At Vollmer, another station, the first train stopped to drop some cars. It was detained about ten minutes, when it resumed its course over the mountain grade. The second train was then in sight, standing on the track, a short distance in the rear, with its lights plainly visible. Clyde Spur, where the collision occurred, is about six miles from Vollmer. It is a place on the road where there is a spur track running out to a logging camp, where saw logs and cordwood are loaded on the cars. There is a side track or switch, upon which cars are left to be run out on the spur track. It is not a regular station, and the regular freight train only stops there when there are empty cars to be left or loaded ones to be taken away. The first train, on

Page 167 U. S. 50

the night in question, had certain cars to be left at this place, and stopped there for that purpose. There were three brakemen on the train. The head brakeman, when the train was slowing up, left his place, and started forward to open the switch. The rear brakeman at this time, saw the second train rounding a curve in the road, and immediately signaled it to stop, and at the same time shouted as loud as he could. The second train was then about one-quarter of a mile behind the first train. The first train had barely come to a full stop when the second train, moving at a speed of about four miles an hour, struck it by running the cowcatcher of its engine under the rear end of the caboose on the first train. The conductor of the first train had been lying down, but was in his seat in the lookout of the caboose, and passed out of the rear end just before the collision occurred. The conductor of the second train had not been notified that the first train would stop at Clyde Spur."

By the shock caused by the collision of the two trains the plaintiff, who was acting as middle brakeman, was thrown from the car on which he was standing, and received severe injuries.

In the plaintiff's complaint it was alleged

"that the said defendant the Northern Pacific Railroad Company was guilty of carelessness and negligence in this: that the conductor of said first train well knew that said second train was following said first train, and failed to leave a flagman in the rear of said first train before and at the time said first train stopped at said Clyde Spur, to hold and stop said second train, as he was in duty bound to do; that the place where said collision occurred was on a mountain grade, and the said defendant the Northern Pacific Railroad Company was guilty of carelessness and negligence in allowing said second train to follow the first train closely, and was guilty of carelessness and negligence in running the second train into said first train, whereby the plaintiff was injured as aforesaid."

The defendant, answering, denied negligence on its part, and alleged that plaintiff's injuries were owing to and caused by his contributory negligence and by the carelessness and negligence of his chanrobles.com-red

Page 167 U. S. 51

fellow servants. It is admitted in the brief of the plaintiff in error that the defense of contributory negligence on the part of the plaintiff was not made out, and the controversy resolves itself into the question whether the plaintiff's injuries were caused by the negligence of his fellow servants within the rule on that subject.

Before the trial, and on the application of the attorneys for the plaintiff, it was ordered that Thomas F. Oakes, Henry C. Paine, and Henry C. Rouse, the receivers of the defendant company, be, and they were thereby, made parties defendant in the action.