Sutherland v. Troy & Boston R. R.

The movement of trains upon the defendant’s railroad was controlled hy the train dispatcher at Troy by means of telegrams sent to the operators at the several stations. The train dispatcher performed the service of the master. Johnson was the defendant’s operator at Petersburgh Junction. He performed a servant’s service, and was a fellow servant of Sutherland, the plaintiff’s intestate. Sutherland was the engineer in charge of the locomotive drawing train No. 1 from Troy easterly, successively past stations Hoosick Falls, Hoosick, Petersburgh Junction, towards North Pownall and stations further east.

Train No. 1 was an express freight train, was two hours beliind its schedule time; it reached and passed Petersburgh Junction at 8:30 A. M. At 6:55 A. M. Johnson, the defendant’s operator at Petersburgh Junction, received from the train dispatcher the following order: “ Flag and hold train lfor orders.” Johnson, as was his duty, thereupon put out a red flag; no train is permitted to pass a red flag. Johnson, at his instrument, next heard an order to train No. 2 to meet train No. 1 at Peters-"burgh Junction. Train 2 was at or beyond some station east of Petersburgh Junction and was moving-west. At 7:19 A. M. train No. 2 reached Petersburgh Junction and stopped. Next-, Johnson received from the train dispatcher an order for train 2 to meet train 1 at Hoosick, a station

We held upon a former appeal that it was a question for the jury upon the evidence whether the defendant was guilty of any omission of duty in not taking additional precautions to bring the knowledge of its order to the engineer of train No. 1. 46 Hun, 372 ; 11 N. Y. State Bep., 841. The evidence upon the retrial is in this respect unchanged and we adhere to the ruling. Train No. 1 was stopped by the dispatcher’s order at Hoosick Balls. The dispatcher might there have told the engineer where to meet No. 6, or where next to stop for orders. It was about 7:25 A. M., when train No. 2 passed Petersburgh Junction westerly to meet train No. 1 at Hoosick. Train No. 1 did not reach Petersburgh Junction until 8:30 following, having been delayed, as the dispatcher knew, by the inability of the locomotive to haul the entire train over an up-grade there, and thus was compelled to separate it in two divisions. The defendant contends that Sutherland, the engineer, ought to have stopped at Petersburgh Junction, notwithstanding the absence of the red flag. This contention is based upon the fact that according to the regular schedule, passenger train No. 33 moving east, and freight train No. 6 moving west, were appointed to meet each other at Petersburgh Junction at 8:52 A. M., and that Sutherland knew this. The answer, the sufficiency of which it was for the jury to consider, is that notwithstanding the schedule the movement of all these trains was controlled by the train dispatcher at Troy. He knew where trains No. 33 and No. 6 were, whether on or behind time, and it was his duty to give to every train the proper orders. For Sutherland to stop át Petersburgh Junction without orders was for him to interfere with the dispatcher’s business and directions.

The defendant further urges that Sutherland ran'train No. 1 from Hoosick Falls past Hoosick and Petersburgh at a rate of speed forbidden by a rule of the company. The rule relied upon is: “ The speed of freight trains must not exceed fifteen miles per hour exclusive of stops, except in cases where schedules are run faster than fifteen miles an hour.” This means that no more than fifteen miles shall be run in an hour of actual running time; not that at no time within the hour shall the highest speed exceed fifteen miles an hour.

Sutherland ran train No. 1 faster than at the rate of fifteen miles an hour after he made a successful start from Hoosick Falls. It is plain that in starting the train and in approaching its stop the train must run much less than at the rate of fifteen miles an hour, and, therefore, to make fifteen miles in an hour it must run faster than at that rate some portion of the distance between stops. The testimony showed that it was well understood that when a freight train was running down grade it would run faster than at that rate.

From Hoosick Falls to the place of the collision it is both up and down grade, with a considerable portion nearly level. Sutherland probably availed himself of favorable grades to make up for some of the time he had lost at Hoosick Falls. As the collision occurred before the fifteen miles east of Hoosick Falls were completed, we cannot know whether this rule was violated.

Another rule is urged by the defendant, namely, “ Freight trains must, in all cases, keep ten minutes out of the way of passenger trains.” Now, train No. S3 was a passenger train, running east from Troy, and due at Petersburgh Junction at 8:52 A. M. It is urged that if Sutherland had not run train No. 1 too fast east of Hoosick Falls he would have reached Petersburgh Junction not more than ten and one-half minutes before 8:52 A. M., and hence could not have reached the next station east of that station ten minutes in advance of the passenger train, and therefore should, in obedience to the ten-minutes rule, have stopped at Petersburgh Junction to allow the passenger train to pass him.

Evidence was' also given showing that just after Sutherland passed Petersburgh Junction the train dispatcher started to send an order to the operator there for trains 1 and 6 to pass each other there, but was advised by the operator that train No. 1 had just passed.

If Sutherland'had stopped at Petersburgh Junction for the passenger train, or had arrived there after the delayed order to meet No. 6 there had been dispatched, the collision would not have occurred. The question is, was he guilty of negligence or misconduct contributing to his own death ?

The jury considered the circumstances. Sutherland was behind time with his train; he was running in obedience to the dispatcher’s orders; he was to stop for these wherever he saw a red flag; he did not know where the other trains' were; he knew that the dispatcher did; doubtless where he had a good opportunity to make speed he made it, relying upon his being reported from the stations he passed; when he approached Petersburgh Junction he looked for the red flag, and there was none; he would naturally conclude that the dispatcher did not want him to stop there; the dispatcher knew best; that he was not to meet No. 6 there; that he was not to wait for the passenger train there; that he must run on to the next station. The jury must decide whether he was acting carefully according to the lights he had; whether, notwithstanding his best judgment he was misled by the fatal omission of

Johnson, the operator, was seventeen years of age at the time of the accident There was evidence that he had performed his duty for three or four months without fault or neglect and was of good intelligence. The court left his competency to the jury, and refused to charge that upon this evidence the jury should find him competent. The point was made by the defendant that the first order to “ flag and hold train 1 for orders ” was in no way recalled or superseded, and that Johnson was negligent in not replacing the red flag after train No. 2 had passed west, and therefore Sutherland was injured by his co-employee’s negligence.

Now it was possible that the jury might find that Johnson was negligent in not replacing the red flag, and it was possible that in view of the orders following the first order they might find that it was just such negligence as a youth of seventeen would be especially liable to fall into. If they found that the fault was Johnson’s, then they might well consider the question whether an operator of mature judgment ought not to have been assigned to a station requiring such accuracy of interpretation and comparison of orders.

The judgment should be affirmed, with costs.

Learned, P. J., and Putnam, J., concur.