Terre Haute & Indianapolis Railroad v. Chicago, Peoria & St. Louis Railway Co.

Mr. Justice Craig

delivered the opinion of the Court:

This action was brought by appellee to recover for the loss of an engine, destroyed, as is alleged, through the negligence of the defendant, the appellant here. The appellant contracted with appellee to transport the engine over its road from East St. Louis to Smithboro for the sum of fifty cents per mile, appellee to furnish on the engine an engine-driver and fireman. The appellant received the engine on its line of road at East St. Louis, placed it in charge of a conductor, who had the management and control of the transportation from the point where it was received, to Smithboro, where, by the contract, it was to be delivered. There is no question in regard to the fact that the engine was destroyed through the negligence of those who controlled its running from East St. Louis to Smithboro, but it is contended that the entire management and control of the engine were in the hands of appellant, while, on the other hand, it is contended by the defendant that the engine was under the joint control of the servants of the plaintiff and defendant, and that the engine was destroyed through the joint negligence of the servants of the plaintiff and defendant.

Under the contract entered into between the two parties, it is plain that the appellant gave the appellee no power or authority to run its trains or engines over the road of appellant. There was no leasing of appellant’s line of road for the purpose of allowing appellee to run an engine over any portion of appellant’s road. Indeed, appellee had nothing to do with the transportation of the engine over appellant’s road. It is true that appellee, when it delivered the engine to the appellant to be transported, furnished a fireman on the engine, whose duty it was to keep up proper fires, and an engine-driver to operate the engine. But the duties of these two parties were merely mechanical. They had no authority to say when the engine should start, what time it should make, where it should stop, or at what station it should be side-tracked to allow trains to pass. These were matters with which the engineer and fireman had nothing to do, and over which they had no control. These matters were in the hands of the conductor of the engine, assigned to that duty by appellant, and he was under the direction of appellant’s train dispatcher. Thus the entire management and control of the engine in its transportation were in the hands of the appellant, and if loss occurred through the negligence of the servants of appellant in transporting the engine, no reason is perceived why appellant should not be held responsible for that loss. Had the conductor who controlled the running of the engine obeyed the order of the train dispatcher the collision would not have occurred. But he failed to do so.

In the argument some importance is sought to be attached to the fact that the order from the train dispatcher was directed to the conductor and engineer on the engine, but we do not regard that a matter of any special importance. The engineer had never been over the road before. He had no time card, knew nothing about the running of trains on the road, and relied entirely upon the conductor as to the running of the engine. When the engineer was directed by the conductor to leave Pocahontas, he had no reason to suppose there was any danger of meeting a train, and so far as he had any knowledge there was no reason why he should refuse to obey the order of the conductor. But if it was the duty of the engine-driver to ascertain what the orders of the train dispatcher as to the running of the engine were, and if he was negligent in that regard, these facts would not prevent a recovery, for the reason that he had no voice whatever in the control of the engine. He was in charge as a mere operator of the engine, as directed by the servants of appellant.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.