Opinion of the Court.

only consider the exceptions to the charge reserved at the trial. The only exception to the charge of the court is this, viz.: “The defendant duly excepted at the time to all that part of the charge of the court to the jury to the effect that the operator or signalman at Rathburn, in respect to his duty to keep the two trains ten minutes apart, was not a fellowservant of the plaintiff's intestate; and to all that part of the charge of the court which in substance and effect instructed the jury that the plaintiff's intestate was not guilty of contributory negligence in failing to see the obstruction on the track caused by the position of No. 7 thereon, and in failing to give notice of the obstruction to the engineer."

We need not discuss the first error assigned if neither of the others is sustained, because the only other question to be considered on this assignment of errors would be the proximate cause of the death of Clark. The court under the evidence should not have taken that question from the jury. The court left the jury to determine the proximate cause of the death, saying that both Chapin, the engineer of train No. 1, and Martin, the conductor of train No. 7, were fellowservants of Clark, and that the defendant company was not liable for their negligence. If, therefore, neither the second nor third assignment of error is sustained, the first must be overruled.

We do not find that the trial court gave or was asked to give any distinct instruction in regard to the contributory negligence of Clark. The court did say to the jury: “In my opinion this whole case centers around the conduct of that dispatcher or operator at Rathburn, or Soddy, as some call it. There is a difference in the statements of the witnesses as to what occurred there; some of the witnesses swearing to one thing, and some of them to another thing. In my opinion, gentlemen of the jury, if you find from proof that the telegraph operator there at Rathburn did not signal this train No. 1, nor detain it there until the ten minutes had elapsed from the departure of the other train, this failure to do so was negligence on the part of the company; that he was not a fellowservant of the intestate's, but that he was a vice-principal of

Opinion of the Court.

the defendant's, and then the defendant would be responsible for his negligence, if any injury resulted from it." And in a subsequent part of his charge the court said to the jury: "Now, if the proximate cause of the injury was the negligence of this telegraph operator at Rathburn, and the engineer of train No. 1 was guilty of negligence, why, that would not preclude this plaintiff from recovering. Whatever effect it might have in a case between the engineer and the railroad, it would have nothing to do in this case. This man had nothing to do with the control of the engine, and if Chapin was ever so negligent in controlling that engine and the injury resulted from the conduct of the train dispatcher, why, the plaintiff would still be entitled to recover." The court was correct in telling the jury that Clark had no control over the engine, and also in saying that if the negligence of the company through its vice-principal caused his death, the negligence of Chapin would not preclude a recovery. See Grand Trunk Railway Company v. Cummings, 106 U. S. 700.

This was, however, not a charge upon the subject of the contributory negligence of Clark in not having seen and informed Chapin of the obstruction, in time to prevent a collision. But if we assume that the language of the charge negatives the idea of contributory negligence upon the part of the decedent, there was, we think, no error. For Clark to have been guilty of contributory negligence under the circumstances he must have seen and known the character of this obstruction in time to have notified the engineer, so that he could have stopped his train and avoided the collision, and have failed thus to notify him; or he must have failed to perform his duty by not seeing this obstruction in time and notifying the engineer, so that he might have avoided the collision. There is not the slightest testimony tending to prove that Clark did actually see this obstruction in time to notify the engineer, that he might avoid the collision. Indeed, there is not the least evidence to prove that Clark did not notify the engineer in time to avoid the collision. Had he seen this obstruction and known its character, self-preservation would have impelled him to have notified the engineer, Chapin, of the impending danger immediately.

Opinion of the Court.

Clark's principal duty as fireman was to look after the engine and fire the furnace, and his duty as a lookout was secondary to this. In the absence of all testimony showing or tending to show that he was not thus engaged, or tending to prove that he did not immediately communicate any information that he had, or could have had by the greatest diligence, to the engineer, the court was right in ignoring the question of his contributory negligence. The testimony of several witnesses introduced by the defendant company was to the effect that they did see, on a night selected for that purpose, the signal on train No. 7 when at Melville by looking across the curve in the railroad, a distance of about twenty-eight hundred feet, and from the end of the curve next Melville, a distance of nineteen hundred and fifty feet, and that they continued to see this signal down the straight track all this distance of nineteen hundred and fifty feet. But such evidence as this did not require the court to call the attention of the jury to the question of Clark's contributory negligence, especially as it was not requested to do so.

We pass to the consideration of the other assigned error which is the important question, and that is whether Jenkins, the telegraph operator, represented the company as viceprincipal. Rathburn was the last telegraph station passed by these trains before the collision at Melville, which is 3 miles distant, and there is conflict in the testimony as to the time of the passage of these trains. There is some testimony tending to prove that train No. 1 passed Rathburn within two or three minutes after train No. 7 had left that station, and other testimony tending to show that the trains were as much as ten minutes apart when they passed the station. Train No. 1 did not stop at the station, but passed on under a white or clear signal placed by the operator, but it is evident that the jury found, under the instruction of the trial court, that Jenkins, the telegraph operator, was guilty of the negligence which caused the death of the plaintiff's intestate, and thus the liability of the defendant was fixed.

The rules of the defendant company provide under the head of "Movement of Trains: "

Opinion of the Court.

“87.

"A train must not leave a station to follow a passenger train until ten minutes after the departure of such passenger train unless some form of block signal is used."

And under the head of "Rules for Telegraph Operators: "

"401.

"When two passenger trains are running in the same direction, they must display a red signal immediately after the first train passes, and at the expiration of ten minutes display a white signal to the following train.”

"390.

"Telegraph operators report to and receive their instructions from the chief train dispatcher. They must obey the instructions of the station agent when they do not interfere with their duties as operators."

There were no special orders given either train No. 7 or train No. 1 by the train dispatcher through Jenkins, the operator at Rathburn. The only order given by the train dispatcher was in regard to the meeting and passing train No. 8, which was north bound, and that was given through another operator. The neglect of Jenkins, if neglect there was, was in his failure to use a proper signal and to stop train No. 1 until the expiration of ten minutes after the passage of train No. 7.

A careful reading of the decisions of the Supreme Court satisfies us that the question under consideration has not been definitely settled by that court.

This court has had occasion to consider the liability of railway companies for injuries done employés by the negli gence of another employé, and the cases of Baltimore and Ohio Railroad Company v. Reynolds' Administrator, 6 U. S. App. 75, and Newport News and Mississippi Valley Company v. Howe, 6 U. S. App. 172, are cited by counsel.

In the Reynolds case the death was caused by a collision between train No. 37 and train No. 88, running in opposite directions. The negligence was the misreading of a dispatch from the train dispatcher which ordered train No. 88 to meet

Opinion of the Court.

train No. 37 at "Bairdstown."

and pass Both the conductor and the engineer on train No. 88 read this "Bloomdale," another station on the road, instead of "Bairdstown." Reynolds was a brakeman on train No. 37 and in the collision which followed was killed. This court held that the negligence of the conductor and engineer on train No. 88 was that of fellow-servants of Reynolds, and that the railroad company was not liable.

In the Howe case, one of the questions was whether Howe, who was a brakeman on a freight train which had parted into two parts, was the fellow-servant of the engineer who had charge of the engine and forward part of the parted train at the time of the injury sustained by Howe, which was caused by the engine running over his arm. Hughes was the conductor of this freight train, and when the train separated he sent Howe forward with a lantern to signal the engine and that part of the train as it returned. Howe fell asleep on the track and the engine which was backing ran over and crushed his arm. One of the allegations of negligence was that the engineer, who by the rules of the company was in charge of his part of the train, did not promptly stop his engine after he discovered Howe on the track. This court held that the negligence of the engineer, if any, was that of a fellowservant of Howe, and that the company was not liable therefor.

These cases do not decide the one under consideration, and we think that the present question remains undecided by any court whose authority is binding upon this. It is, however, true, we think, that the trend of recent decisions, especially in the state courts, has been to make the orders of a train dispatcher the orders of the company, and his negligence in the control and running of trains the negligence of the company for which he acts. The reason for this is that the power and authority of a train dispatcher when running trains under telegraphic orders is and must be supreme; hence, the company, having thus delegated supreme authority in the special service, should be responsible for any negligence of the train dispatcher. The train dispatcher is the superior