Brown v. Central Pacific Railroad

Hayne, C. Since the former decision (12 Pac. Rep. 512) the case has received a thorough discussion, which has induced a change of view.

Gilman G. Brown was conductor on one of the defendant’s trains running between Los Angeles and Yuma. During the night of April 7,1877, his train parted. The forward portion, on which were the engineer, the fireman, and the head brakeman, ran ahead of the rear portion, on which were the conductor and the two other brakemen. When the forward portion had got considerably in advance, the head brakeman discovered what had occurred, and he thereupon had the engine stopped, and going upon the top of the rear car, signaled the engineer to back. The engineer obeyed the signal, and the other portion of the train coming on of its own momentum, a collision occurred, which caused the death of the conductor. Plis widow and heirs bring this action against the company.

Nothing can be plainer than that if two bodies keep moving towards each other on the same track, a collision must result. It is evident, therefore, that somebody on those trains must have been guilty of negligence. Who was it? those on the forward portion, or those on the rear portion, or both ? We think that there was negligence on both sides.

1. The track being slightly down grade, the head brakeman ought to have known that it was imprudent to back. He ought to have kept his portion of the train [525]moving on, “ even to the next station, if necessary,” or at least he should have allowed ample time to elapse before starting back to see what had become of the other portion of the train. The course adopted was, under the circumstances, dangerous in the extreme, and was one of the main causes of the accident. But the blame rests upon him, and not upon the engineer. The uncontradicted evidence is, that when a train parts, under the circumstances shown in this case, the head brakeman becomes the conductor of the portion on which he is, and has control of the engineer. Rule 44 is not in conflict with this. The injunctions laid by that rule upon the engineer are not intended to prevent his obeying the higher authorities. If the conductor or head brakeman is there, the engineer must obey his instructions, and the evidence shows that he did obey them. This being the case, the evidence introduced to show the incompetence of the engineer becomes immaterial. The negligence was that of the head brakeman; and since he was the fellow-servant of the deceased, and no want of care in his selection is imputed to the company, it cannot be held liable for what occurred. And if it be said that, conceding the engineer did right in obeying the signals to back, yet that in backing he ought to have sounded his whistle and rung his bell, the answer is, that the inducing cause of the accident was backing at all, and that, this having been done, there is only a bare possibility that the taking of the precautions mentioned would have made any difference, especially in view of the fact that neither of the brakemen on the other portion of the car was at his post, and that nobody there was aware that the train had parted.