Opinion
No. 161.
March 11, 1929.
In Error to the District Court of the United States for the Northern District of New York.
Action brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) by Arthur J. Dibble against the Unadilla Valley Railway Company to recover damages for personal injuries. Judgment for plaintiff for $7,052, and defendant brings error. Reversed.
The plaintiff, Dibble, was a motorman on a gasoline driven car of the defendant railway, which, on June 25, 1924, the day of the accident, was going from Bridgewater, N.Y., to New Berlin. Ordinarily, at Bridgewater, the train would meet a north-bound freight, and, under the rules of the company, which were not to be disregarded, save by virtue of a written order (known as the green order), the train was to take a siding at Bridgewater and wait for the freight to pass. On June 25, 1924, according to Dibble's testimony, Caldine, the conductor of the train, rang his bell to start south from the Bridgewater station, and Dibble, though he had received no written order and none was shown to have been issued to any one, started the train which came into collision with the north-bound freight about one-quarter of a mile south of the Bridgewater station. In the collision Caldine was killed and Dibble injured. Dibble admitted that it was against the rules of the railway to pass the freight at any other place than the Bridgewater yard without a written order. The testimony was clear that these written orders required that the conductor and engineman should each have a copy. Dibble knew the rules, but testified that on some 15 different occasions, when they met the freight south of Bridgewater, though written orders had been given, both the copies were delivered by the station agent at Bridgewater to the conductor, who only gave Dibble his copy after he had collected the passenger tickets and the train had got a mile or so out of the station. Dibble justified starting the train without himself having a written order, because of the direction of the conductor, Caldine, which he said he always obeyed.
Merritt Bridges, of Morris, N.Y. (Warwick J. Kernan, of Utica, N Y, of counsel), for plaintiff in error.
Glenn F. Carter, of Norwich, N.Y. (David F. Lee, of Binghamton, N Y, of counsel), for defendant in error.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The Federal Employers' Liability Act (45 USCA §§ 51-59), under which Dibble brought this action to recover damages for his injuries, imposes liability upon a common carrier engaged in interstate commerce for injuries to any employee "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." The plaintiff contends:
(1) That the rule requiring a written order before proceeding south of Bridgewater was abrogated by the disregard of it by the railway employees. Such being the case, the plaintiff was entitled to recover, even if partly in fault.
(2) That, even if the rule was in full force, the accident resulted in part, at least, from the negligence of the conductor, Caldine, an employee of the railway, and thus Dibble's cause of action came within the terms of the act.
The only evidence that the rule had become a dead letter was that on certain other occasions Dawson, the station agent, whose business it was to give a copy to both the conductor and motorman of any order that the south-bound train should pass the north-bound freight below Bridgewater, neglected his duty. Dawson, according to this testimony, initiated the violation of the rule by handing both copies of such orders to the conductor. Certainly some agent representing the railway, other than the one violating the rule, should have actual or constructive notice of its disregard, before the company can be charged with abandoning its written regulations made for the protection of employés and passengers. Clark v. Manhattan R. Co., 77 App. Div. 284, 79 N YS. 220; Cameron v. N.Y.C., etc., R.R. Co., 145 N.Y. 400, 40 N.E. 1. We can find no sufficient proof that any official or agent of the railway knew or had reason to know that copies of the duplicate green orders were not always delivered by the station master at Bridgewater to Dibble before the train started. Therefore the rule seems to have at all times been in force. If this be so, it is difficult to see why Dibble was not primarily liable for the accident.
In Unadilla Valley Railway Co. v. Caldine, 278 U.S. 139, 49 S. Ct. 91, 73 L. Ed. ___, Caldine's administrator sued this same railway for damages resulting from his death in this very accident. It was there argued that the plaintiff ought to recover because of the negligence of Dibble in going ahead, and the failure of Dawson, the station agent at Bridgewater, to warn him of the freight train, which he knew was coming north. Justice Holmes, writing for the court, said that Caldine, when he deliberately violated the rule, was not entitled to say that the collision was due to any one but himself; this, even though Dibble also violated the rule, and Dawson failed in the duty to warn Caldine of the danger. Justice Holmes said of Caldine:
"He was in command. He expected to be obeyed, and he was obeyed as mechanically as if his pulling the bell had itself started the train. In our opinion he cannot be heard to say that his subordinate ought not to have done what he ordered. He cannot hold the company liable for a disaster that followed disobedience of a rule intended to prevent it, when the disobedience was brought about and intended to be brought about by his own acts."
The foregoing remarks were made in answer to the claim that the failure of Dawson and Dibble to perform their obligations was "negligence to which the injury was due, at least in part," and which, therefore, imposed some liability on the railway. The court said that "the relation between the parties is to be taken into account."
Now, between Dibble and the railway, Dibble is in the same position as Caldine. There was a rule made for the protection of each, and each violated it; Caldine by his order, Dibble by his act. While it did not lie in Caldine's mouth, when he deliberately disobeyed the rule, to say that the accident was due to Dibble, it equally did not lie in Dibble's mouth, under identical circumstances, to say that the accident was primarily due to the neglect of Caldine. As against the railway, each was primarily responsible for the injury which befell him.
The decision in Davis v. Kennedy, 266 U.S. 147, 45 S. Ct. 33, 69 L. Ed. 212, cannot be reconciled with any other result. There an engineer neglected to ascertain whether another train had passed a point on the road. The court said: "His duty was primary as he had physical control of No. 4, and was managing its course. It seems to us a perversion of the statute to allow his representative to recover for an injury directly due to his failure to act as required on the ground that possibly it might have been prevented if those in secondary relation to the movement had done more." See, also, Great Northern Ry. v. Wiles, 240 U.S. 444, 36 S. Ct. 406, 60 L. Ed. 732.
It is apparent from the foregoing that the plaintiff knowingly violated the railway regulation and started his train without any orders, and that this act was the primary cause of his injury. The motion to dismiss the complaint should accordingly have been granted.
Judgment reversed.