The defendant in error, who was plaintiff below, recovered a judgment against the railroad company, plaintiff in error, in a trial court in Arizona territory, for the negligent killing of her son, which judgment was affirmed by the supreme court of the territory, and the company brings the case here.
The deceased was a brakeman and had been employed by the defendant company as such for a few weeks before the accident occurred in which he lost his life. He acted as one of the brakemen upon the freight train, which was pushed up on a spur track that ran from the main line in the town of Globe, in the territory, to a mining station, about 500 yards away. The accident, which resulted in the death of the deceased, occurred on this spur track on the 14th of July, 1900. The grade of the spur, after leaving the main line, was, for a short distance, level. It then became quite steep upgrade, getting steeper and steeper, until it again became level, under what is termed the tramway house. This was a structure erected over the tracks, and the bottom of it was only 2 feet above the top of the freight cars, and from that tramway structure to the end of the road the grade was about level, and the distance a little over a hundred feet. The track ended on a trestle, with a buffer at the end, which was not calculated to resist a car pushed by an engine, but only to stop on pushed by hand or by the wind. The trestle ended at the side of a canon, and there was at that point an abrupt fall to the bottom of the canon of 75 feet. There was a curve on the spur track, which would prevent the engineer from seeing the end of his train, and he would have to obtain signals from others in order to run his engine. The upgrade was so steep that only a few cars could be taken up from the main track at any one time.
On the occasion of the accident the train started from the main line, and was pushed up grade by the engine in the rear. The deceased was on top of the front car of the train, being farthest away from the engine at the time the train was being pushed up. The conductor was on the car next to that of the deceased, and by his orders the engineer shoved the train as rapidly as he could, and ran it at the rate of 5 or 6 miles an hour, and then after a shove the two cars on which were the deceased and the conductor were detached from the train and passed along at that rate of speed under the tramway house and on to the level portion of the road, which ended in about a hundred feet at the side of the canon. The deceased was unable to control the speed of the cars with his brakes, and the car on which he was riding passed along and knocked away the buffer and plunged down to the bottom of the canon. Eye witnesses of the accident immediately descended the side of the canon and found at the bottom the car and the dead body of the deceased.
There was evidence tending to show that the spur track was not a safe and proper structure to operate over its length with cars, for the reason that the tramway house was so close to the top of the cars when passing under it that the brakes could not be handled, and there was not sufficient length of road after the train passed under the house during which to get the cars under control and stop them before they arrived at the end of the track and the side of the canon. The only way in which it ought ever to have been done was to have the engine at all times attached to the train, and even then, if anything got out of order with the engine, the train was not under control of the brakeman, on account of the tramway house. The buffer at the end of the track was also asserted to be insufficient, and witnesses were called who testified that the track was not a reasonably safe one upon which to conduct the business of the road.
The company, on its part, gave evidence tending to show that the track was properly constructed; that the buffer was sufficient for the purpose intended, and that the whole structure was a reasonably safe place, and that the accident was caused simply by the flagrant negligence of the conductor, in ordering the two cars to be detached from the train, and thus taken away from the control of the engine. It also gave evidence that the buffer was not to be used at the end of the track to stop cars in motion, nor were the hand brakes intended to be so used at that spot, as it was intended that the engine should control the cars and should not be there detached from them. They therefore insist that, when the operation was properly performed, the matters of the low shed, short track, and insufficient buffer were immaterial. It was all predicated upon the fact that the cars should be under the control of the engine, and should not be detached therefrom, as these cars were, under the orders of the conductor.
Mr. Frank W. Burnett for plaintiff in error.
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Mr. Waters Davis for defendant in error.
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Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: