Illinois Cent. R. v. Bentz

Sixth Circuit

Illinois Cent. R. v. Bentz

99 F. 657, 40 C.C.A. 56, 1900 U.S. App. LEXIS 4177

CourtCourt of Appeals for the Sixth Circuit

DecidedFebruary 12, 1900

DocketNo. 734

StatusPublished

Cited by6 cases

This text of 99 F. 657 (Illinois Cent. R. v. Bentz) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Illinois Cent. R. v. Bentz, 99 F. 657, 40 C.C.A. 56, 1900 U.S. App. LEXIS 4177 (6th Cir. 1900).

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Opinion

TAFT, Circuit Judge

(after stating the facts as above). If Bentz disregarded the red signal, and passed Milan without waiting until the white signal was shown him, it is not disputed that the resulting collision would have been due to his negligence, and that he could not recover from the company. The only other possible theory of the accident is that the telegraph operator gave the white signal to Bentz, the engineer, as the men on Bentz’s train testify he did, and that, when he was asked a few minutes later by the train dispatcher at Jackson whether the train had passed, he negligently forgot the fact. If he had then remembered that Bentz’s train had passed his station 1.5 minutes before, and had so informed the operator, it would have been entirely within the power of the train dispatcher either to hold 81 at Martin, or to permit it to run on to Greenfield, a distance of nine miles, and there wait the coming of Bentz’s train. The failure of the telegraph operator to keep the train dispatcher advised ás to the whereabouts of Bentz’s train was the cause of the collision, and the only cause, unless Bentz contributed to it by his own negligence, as already explained. We have already decided in this court, in the case of Railroad Co. v. Camp, 31 U. S. App. 213, 13 C. C. A. 233, Co Fed. 952, that at the common law (and there is no statute in Tennessee) a telegraph operator is the fellow servant of an engineer. See, also, Railroad Co. v. Clark, 16 U. S. App. 17, 6 C. C. A. 281, 57 Fed. 125; Slater v. Jewett, 85 N. Y. 61; Sutherland v. Railroad Co., 125 N. Y. 737, 26 N. E. 609; Reiser v. Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175; McKaig v. Railroad Co. (C. C.) 42 Fed. 288. 'The fact that the supreme court of Tennessee, in the case of Railroad Co. v. De Armond, 86 Tenn. 73, 5 S. W. 600, had taken another view of this question, under the department theory of fellow servants, which prevails in the state courts of-that state, was noted in the Camp Case, and the view of the Tennessee court was dissented from. If the De Armond Case is the authority which was followed by the learned" judge at the circuit, the Camp Case could not have been called to his attention. The jury, on the facts of the case, because the injury occurred through the negligence of a fellow servant of the plaintiff’s husband, should have been directed to bring in a verdict for the defendant. The judgment of the court below is reversed, with directions to order a new trial. '

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TAFT, Circuit Judge

(after stating the facts as above). If Bentz disregarded the red signal, and passed Milan without waiting until the white signal was shown him, it is not disputed that the resulting collision would have been due to his negligence, and that he could not recover from the company. The only other possible theory of the accident is that the telegraph operator gave the white signal to Bentz, the engineer, as the men on Bentz’s train testify he did, and that, when he was asked a few minutes later by the train dispatcher at Jackson whether the train had passed, he negligently forgot the fact. If he had then remembered that Bentz’s train had passed his station 1.5 minutes before, and had so informed the operator, it would have been entirely within the power of the train dispatcher either to hold 81 at Martin, or to permit it to run on to Greenfield, a distance of nine miles, and there wait the coming of Bentz’s train. The failure of the telegraph operator to keep the train dispatcher advised ás to the whereabouts of Bentz’s train was the cause of the collision, and the only cause, unless Bentz contributed to it by his own negligence, as already explained. We have already decided in this court, in the case of Railroad Co. v. Camp, 31 U. S. App. 213, 13 C. C. A. 233, Co Fed. 952, that at the common law (and there is no statute in Tennessee) a telegraph operator is the fellow servant of an engineer. See, also, Railroad Co. v. Clark, 16 U. S. App. 17, 6 C. C. A. 281, 57 Fed. 125; Slater v. Jewett, 85 N. Y. 61; Sutherland v. Railroad Co., 125 N. Y. 737, 26 N. E. 609; Reiser v. Pennsylvania Co., 152 Pa. St. 38, 25 Atl. 175; McKaig v. Railroad Co. (C. C.) 42 Fed. 288. 'The fact that the supreme court of Tennessee, in the case of Railroad Co. v. De Armond, 86 Tenn. 73, 5 S. W. 600, had taken another view of this question, under the department theory of fellow servants, which prevails in the state courts of-that state, was noted in the Camp Case, and the view of the Tennessee court was dissented from. If the De Armond Case is the authority which was followed by the learned" judge at the circuit, the Camp Case could not have been called to his attention. The jury, on the facts of the case, because the injury occurred through the negligence of a fellow servant of the plaintiff’s husband, should have been directed to bring in a verdict for the defendant. The judgment of the court below is reversed, with directions to order a new trial. '

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99 F. 657, 40 C.C.A. 56, 1900 U.S. App. LEXIS 4177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-cent-r-v-bentz-ca6-1900.

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