Terre Haute & I. R. R. v. Chicago, P. & St. L. Ry. Co.

Mr. Presiding Justice Sample

delivered the opinion of the Court.

There is no substantial dispute as to the facts in this case. The controversy seems to arise as to the proper conclusion to be drawn therefrom. The appellant contends the facts show that the appellant’s employe, the conductor, and the appellee’s employe, the engineer, were co-ordinate with a limited authority, under the general supervision in running the engine, of the appellant’s train dispatcher, whose orders were sent to and received by both, and therefore both were equally responsible for their proper execution. Hence, it is said, the collision occurred by the negligence of both, and there can be no recovery. The appellee contends that the facts show that for this particular business the engineer was the servant of appellant, under the control of its pilot or conductor, and was actually in its service at the time of the collision. Our conclusion is, the effect of the contract was, that if the appellee would furnish its engineer and fireman to mechanically operate the engine, under the appellant’s superintendence, then it would furnish a conductor to take charge of and run the same from East St. Louis to Smithboro, for fifty cents per mile. That appellant’s conductor actually directed the running of the engine, the same as any other conductor, is unquestionable. He testified, “ I directed the movement of the engine.” The fact that the train dispatcher directed his orders to the conductor and engineer did not change or affect in any way the relation of superior and subordinate, which in that service they sustained to each other. It is not shown but that all such messages are so directed to insure notice to each.

Doubtless an engineer is not bound to obey an order that he knows will imperil his life or the property in his charge, yet he is bound to obey what at the time appears to him to be a reasonable command. From the evidence it would not appear unreasonable to the engineer to obey the order of the conductor to pull out from Pocahontas after Ho. 9 had passed, which was to have been met at Greenville, nine miles further east; especially in view of the statements then made by the conductor, that it carried no signals indicating a train was following, and that they would have plenty of time to make Greenville. The engineer might well rely on the information supposed to be possessed by the conductor, and obey his orders. The conductor knew the running time of the trains on that road, and at the time had a time table in his pocket. He also knew that Ho. 17 was then due when he opened the switch and gave the order to pull out. He testified, “ I knew about it, but had forgotten it.” Our conclusion is that the conductor, as the servant of appellant, was in charge of the engine, and was required to exercise at least reasonable care in the performance of that duty. His negligence was that of appellant’s, and therefore the judgment is affirmed.