The court's charge, in section 6, tells the jury, in effect, that, if they shall believe from the evidence that the conductor delivered train order No. 14 to appellee, and he "negligently failed to read and observe the same," or "if the plaintiff had read the orders handed him aloud to the conductor, and the absence of order No. 14 would have been discovered, and that by reason of the discover of its absence it would have been supplied, and train No. 3 would have stopped at Camp's, and the accident avoided," then, "in either event the plaintiff would be guilty of contributory negligence," diminishing the amount of damages to which the appellee may be entitled. The appellants, timely excepting to the charge, predicate error upon the instruction upon the ground that it is affirmatively erroneous, as a misdirection to the jury of the law applicable to the facts therein stated. The point made by appellants, stated in effect, is that the facts upon which the instruction is predicated legally operate to eliminate the doctrine of "contributory negligence," merely diminishing the amount of damages, and to establish nonliability of appellants for any damages as a matter of law. As to whether or not the charge is based upon a misconception, as insisted by appellants, in whole or in part, of the law applicable must be determined in the light of the precise facts of this case. As admittedly shown, the collision occurred at 5:12 o'clock a. m., on a curve one and one-eighth miles west of and beyond Camp's Switch. Had the passenger train waited at Camp's Switch until 5:15 o'clock a. m., as directed to be done by order No. 14, the collision would not have occurred, as admitted by the record. It was undenied that order No. 14 was issued to countermand order No. 8, which was previously issued, requiring the passenger train to wait at Gladewater, distant 4 miles west of Camp's Switch, until 5:15 o'clock a. m. In all the facts the only conclusion that could justly be reached, and to which all reasonable minds must agree, would be that the appellants, though some of their employees were guilty of negligence, even unjustifiably so, from the viewpoint of the safety of the crew on the on-coming freight train and passengers on the passenger train, had the suit been brought by any one of them. But considering the case from the viewpoint of liability to appellee, as the engineer charged with the duty of safely operating the passenger train, the question is pertinent of whether the direct and immediate cause of the collision was due alone to his fault, or was due to some fault of his concurring with or contributing to the negligence of appellants or some of their employees. The appellee claims, stated in effect, that he was in no wise responsible for the collision, because he was complying with the orders handed him, and which contained the only information he had, and that such orders were the operative influences which led to his not waiting at Camp's Switch until 5:15 o'clock a. m., which was the immediate cause of his injury. He testified that the conductor never delivered to him order No. 14, and that he did not know there was "a fifth order," No. 14, which required passenger train No. 3 to wait at Camp's Switch, instead of Gladewater, until 5:15 a. m., and that he had no knowledge that there was an on-coming freight train to Camp's Switch, and that he operated the train out of Longview Junction and up to the point of collision in strict conformity with the clearance card and the four orders that he did receive. The evidence of the fireman and the brakeman strongly tends to corroborate him in the statement that he did not get order No. 14. The fireman testified that he did not find order No. 14 among the orders given to Engineer Jarrett. The brakeman testified that he did not find any order No. 14 among the batch of duplicate orders that the conductor had after he boarded the train. And the telegraph operator admits that he omitted to issue order No. 14 on the proper form, and omitted to issue the proper caution card required under the circumstances. On the other hand, the operator testified that he issued and delivered to the conductor order No. 14, countermanding order No. 8, which the appellee had, requiring the passenger train to wait at Gladewater until 5:15; and the conductor testified that he received the order No. 14 in duplicate and delivered one to the appellee along with order No. 8 and the other orders and clearance card in evidence. They further testified that order No. 14 was noted on the clearance card given to appellee. Appellee denies this statement of fact. But it is conclusively established that the appellee and the conductor failed to read and compare their orders in the presence and hearing of each other, as required of them by a rule promulgated for the safe operation of trains on their trips over the road. And further, the record practically admits that the conductor, having information that passenger train No. 3 would meet freight train 66 at Camp's Switch by 5:15 o'clock a. m., failed to signal and require the appellee to stop at Camp's Switch, after seeing that he was not complying with order No. 14.
Considered in the several aspects of the evidence, it is manifest that the appellee could not be held legally responsible in any
wise for the collision, if the conductor did not in fact hand him order No. 14, and unless he could have gotten timely information of order No. 14 by verifying his orders, as the rule required, with the orders of the conductor. Clearly, under the evidence, appellee's failure "to read the orders aloud to the conductor" in order to compare and verify the orders was not purely voluntary and alone his fault. The appellee received the orders from the conductor in the nighttime, in the cab of his engine, at his post of duty. He at once turned to the light in the cab to see them, and then, as appellee says, "I stepped over to where the conductor was, and he had gone." He would have compared the orders if the conductor had remained there. The conductor, as he admits, "waited to see if he was going to read them aloud, from between 15 to 20 seconds, before I left the engine." The appellee did not tell the conductor that he was not going to read aloud and compare the orders, and there is no apparent reason why he stayed no longer than "between 15 to 20 seconds." He had no other imperative duty to perform, for, as he testified, "After I gave him the orders, I turned and went back and watched them load baggage and mail." "Between 15 to 20 seconds" is not a reasonable time within which to compare the orders. It was as much the duty of the conductor as of the engineer, under the rule, to make comparison of the orders. The conductor was charged with the duty of receiving duplicate orders from the operator, and to make personal delivery of one set of the orders to the engineer, and with seeing to it that the orders be compared in the presence and hearing of himself and the engineer. The very purpose of requiring the comparison of the orders is to enable them to discover then and there whether each one of them had the same orders and all the orders, general and special, issued for the operation and protection of that train. His duty, as was the engineer's, was as clear as its performance was easy. The safety of the train crew and the passengers is dependent upon that being done. The conductor was not merely a messenger to do no more than make a manual delivery of the orders to the engineer, and upon handing them to the engineer to leave right away in "between 15 to 20 seconds."
The engineer and the conductor operate the train in common employment, having the immediate common object of running the train in conformity with the general and special orders issued to them.
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The court's charge, in section 6, tells the jury, in effect, that, if they shall believe from the evidence that the conductor delivered train order No. 14 to appellee, and he "negligently failed to read and observe the same," or "if the plaintiff had read the orders handed him aloud to the conductor, and the absence of order No. 14 would have been discovered, and that by reason of the discover of its absence it would have been supplied, and train No. 3 would have stopped at Camp's, and the accident avoided," then, "in either event the plaintiff would be guilty of contributory negligence," diminishing the amount of damages to which the appellee may be entitled. The appellants, timely excepting to the charge, predicate error upon the instruction upon the ground that it is affirmatively erroneous, as a misdirection to the jury of the law applicable to the facts therein stated. The point made by appellants, stated in effect, is that the facts upon which the instruction is predicated legally operate to eliminate the doctrine of "contributory negligence," merely diminishing the amount of damages, and to establish nonliability of appellants for any damages as a matter of law. As to whether or not the charge is based upon a misconception, as insisted by appellants, in whole or in part, of the law applicable must be determined in the light of the precise facts of this case. As admittedly shown, the collision occurred at 5:12 o'clock a. m., on a curve one and one-eighth miles west of and beyond Camp's Switch. Had the passenger train waited at Camp's Switch until 5:15 o'clock a. m., as directed to be done by order No. 14, the collision would not have occurred, as admitted by the record. It was undenied that order No. 14 was issued to countermand order No. 8, which was previously issued, requiring the passenger train to wait at Gladewater, distant 4 miles west of Camp's Switch, until 5:15 o'clock a. m. In all the facts the only conclusion that could justly be reached, and to which all reasonable minds must agree, would be that the appellants, though some of their employees were guilty of negligence, even unjustifiably so, from the viewpoint of the safety of the crew on the on-coming freight train and passengers on the passenger train, had the suit been brought by any one of them. But considering the case from the viewpoint of liability to appellee, as the engineer charged with the duty of safely operating the passenger train, the question is pertinent of whether the direct and immediate cause of the collision was due alone to his fault, or was due to some fault of his concurring with or contributing to the negligence of appellants or some of their employees. The appellee claims, stated in effect, that he was in no wise responsible for the collision, because he was complying with the orders handed him, and which contained the only information he had, and that such orders were the operative influences which led to his not waiting at Camp's Switch until 5:15 o'clock a. m., which was the immediate cause of his injury. He testified that the conductor never delivered to him order No. 14, and that he did not know there was "a fifth order," No. 14, which required passenger train No. 3 to wait at Camp's Switch, instead of Gladewater, until 5:15 a. m., and that he had no knowledge that there was an on-coming freight train to Camp's Switch, and that he operated the train out of Longview Junction and up to the point of collision in strict conformity with the clearance card and the four orders that he did receive. The evidence of the fireman and the brakeman strongly tends to corroborate him in the statement that he did not get order No. 14. The fireman testified that he did not find order No. 14 among the orders given to Engineer Jarrett. The brakeman testified that he did not find any order No. 14 among the batch of duplicate orders that the conductor had after he boarded the train. And the telegraph operator admits that he omitted to issue order No. 14 on the proper form, and omitted to issue the proper caution card required under the circumstances. On the other hand, the operator testified that he issued and delivered to the conductor order No. 14, countermanding order No. 8, which the appellee had, requiring the passenger train to wait at Gladewater until 5:15; and the conductor testified that he received the order No. 14 in duplicate and delivered one to the appellee along with order No. 8 and the other orders and clearance card in evidence. They further testified that order No. 14 was noted on the clearance card given to appellee. Appellee denies this statement of fact. But it is conclusively established that the appellee and the conductor failed to read and compare their orders in the presence and hearing of each other, as required of them by a rule promulgated for the safe operation of trains on their trips over the road. And further, the record practically admits that the conductor, having information that passenger train No. 3 would meet freight train 66 at Camp's Switch by 5:15 o'clock a. m., failed to signal and require the appellee to stop at Camp's Switch, after seeing that he was not complying with order No. 14.
Considered in the several aspects of the evidence, it is manifest that the appellee could not be held legally responsible in any
wise for the collision, if the conductor did not in fact hand him order No. 14, and unless he could have gotten timely information of order No. 14 by verifying his orders, as the rule required, with the orders of the conductor. Clearly, under the evidence, appellee's failure "to read the orders aloud to the conductor" in order to compare and verify the orders was not purely voluntary and alone his fault. The appellee received the orders from the conductor in the nighttime, in the cab of his engine, at his post of duty. He at once turned to the light in the cab to see them, and then, as appellee says, "I stepped over to where the conductor was, and he had gone." He would have compared the orders if the conductor had remained there. The conductor, as he admits, "waited to see if he was going to read them aloud, from between 15 to 20 seconds, before I left the engine." The appellee did not tell the conductor that he was not going to read aloud and compare the orders, and there is no apparent reason why he stayed no longer than "between 15 to 20 seconds." He had no other imperative duty to perform, for, as he testified, "After I gave him the orders, I turned and went back and watched them load baggage and mail." "Between 15 to 20 seconds" is not a reasonable time within which to compare the orders. It was as much the duty of the conductor as of the engineer, under the rule, to make comparison of the orders. The conductor was charged with the duty of receiving duplicate orders from the operator, and to make personal delivery of one set of the orders to the engineer, and with seeing to it that the orders be compared in the presence and hearing of himself and the engineer. The very purpose of requiring the comparison of the orders is to enable them to discover then and there whether each one of them had the same orders and all the orders, general and special, issued for the operation and protection of that train. His duty, as was the engineer's, was as clear as its performance was easy. The safety of the train crew and the passengers is dependent upon that being done. The conductor was not merely a messenger to do no more than make a manual delivery of the orders to the engineer, and upon handing them to the engineer to leave right away in "between 15 to 20 seconds."
The engineer and the conductor operate the train in common employment, having the immediate common object of running the train in conformity with the general and special orders issued to them. It is absolutely necessary to the safe operation of the train that they both understand and know of the same orders, and that each one of them have all the orders governing the running of the train. Consequently it cannot be said in the circumstances that the engineer was wholly to blame for not knowing of and receiving order No. 14, if he did not get it, and without any concurring negligent act or omission on the part of the conductor. The omission and failure of the conductor to discharge his duty in this respect would, as against appellee, be negligence legally chargeable to appellants, for, under the statute, the conductor was standing in the relation of agent or vice principal of the appellants. Articles 6640-6642, R.S. Then, as both the conductor and the engineer failed in their duty to each other, there exists a legal justification for a comparison of negligences and the apportioning of their effect. This would constitute contributory negligence, for "contributory negligence" is legally predicated upon the fact that negligence on the part of the plaintiff "co-operates with some negligence on the part of the defendant." Under the statute contributory negligence does not bar any recovery, but merely diminishes the amount of damages. The essential fact to legally preclude from a recovery at all is that the omission or act charged to the plaintiff in a given case immediately and directly causing his injury is alone the fault of the plaintiff, entirely independent of and dissociated with any concurring or co-operating omission or act of the defendant or some of his employees. Therefore the court did not err in applying the rule of contributory negligence in respect to the matter discussed. And in this connection it may be observed that contributory negligence predicated on the failure "to read the orders aloud to the conductor" would also be applicable to that phase of the case seeking to base liability upon the negligent failure of the conductor, being the superior in control of the train, to signal and stop the train at Camp's Switch, knowing that it was there to meet freight train 66, and seeing that the engineer was passing the stopping place.
In the other aspect of the evidence it is concluded that the appellants' contention must be sustained that, if the conductor handed to appellee order No. 14, then he would be precluded from any recovery if the failure to observe the order was the immediate and direct cause of the collision. For the immediate and direct cause of the collision would be his fault alone in knowingly disregarding a special order for his direction in safely operating the train to wait at a special place for a specified period of time for an on-coming train to that special place. In such case there is an absence of any negligence on the part of appellants immediately and directly causing the collision. All question of "contributors negligence" is eliminated. If appellee was handed special order No. 14 directing the train to wait at the special place of Camp's Switch until the special time of 5:15 o'clock
a. m., he should have obeyed that order, notwithstanding the fact that the clearance card showed the track ahead "clear." The negligent issuance of the clearance card would not be of importance in that respect, or be a co-operating or concurring cause in the collision, occurring, as it did, at a different place further from Camp's Switch, and 3 minutes before the special time of 5:15 a. m. had elapsed. The cause of the collision would not be incident to, but entirely independent of and intervening between, the appellants' negligence and the result of it. The negligent issuance of the clearance card, as a means to mislead the appellee, would only be a concurring or proximate cause of the collision in case appellee had waited at Camp's Switch until 5:15 a. m. and then left. He could not be held solely responsible for obedience to orders in that case. Quoting from Ry. Co. v. Ryan, 69 Tex. 665, 7 S.W. 83:
"An employer is bound to use due care to promote the safety of an employee, and if the employee knowingly and intentionally disobeys a reasonable rule or regulation established for his safety, unless he does so under the influence of fear produced by the appearance of sudden danger, and the act of disobedience is the proximate cause of the injury complained of, he cannot recover."
The same rule is applied in Ry. Co. v. Brown, 95 Tex. 2, 83 S.W. 305; Ry. Co. v. Reiden, 48 Tex. Civ. App. 401, 107 S.W. 661; Davis v. Payne (Or.) 216 P. 195; Ry. Co. v. Wiles, 240 U.S. 444, 36 Sup.Ct. 406,60 L.Ed. 732. Appellee testified that had he received order No. 14 he would have obeyed it and stopped at Camp's Switch, even though and notwithstanding it was on form 19, and even though the clearance card showed the block "clear." In the operation of railroads it becomes necessary to issue special orders governing the operation of trains, giving information as to condition of the track ahead, and of the trains moving behind and ahead and on-coming. Conductors and engineers have knowledge of that fact and of the importance of such orders to the safety of operation. Obedience to such orders is required for the safety of the train crews and the traveling public. It seems just in principle to hold the engineer and conductor, in the interest of safety to the lives and limbs of people, to a strict sense of responsibility of attention to and observance of special orders like order No. 14. If the appellee received order No. 14 it would be presumed, in the discharge of his duty, that he read it. Observance of wait and meet train orders, and obedience to them, knowing, if so, that they are issued, is of too vital importance to the safety of human lives to be the subject-matter of momentary neglect as a justification or excuse. As stated in the Wiles Case, supra, "To excuse its neglect would remove security from the lives of those upon the train."
The error complained of requires the judgment to be reversed, and the cause remanded for another trial.
On Motion for Rehearing.
The appellee emphasizes the point that his conduct in operating the engine must be viewed from his standpoint of receiving at the same time a batch of train orders. And the contention is then made that there was error in the holding by this court to the effect that, if the appellee actually received train order No. 14 from the conductor, and failed to observe the order, and the failure to observe the same and wait at Camp's Switch until 5:15 o'clock a. m. was the immediate and direct cause of the collision, then the appellee would be precluded from any recovery. The insistence now is that, if the appellee actually received train order No. 14, and was confused and misled by the conflict in order No. 8, the clearance card, and the absence of the caution card, he would not be guilty of negligence per se, but then it becomes a question of contributory negligence. It may be that an ordinarily prudent person might have drawn one conclusion as to what the orders meant, or he might readily have been misled into drawing a different conclusion. But the converse of the proposition made is also correct, that, if the appellee actually received train order No. 14, and was not confused and misled by the conflict in the other orders, then in failing to observe order No. 14 he would be precluded from recovering, if such failure was the proximate cause of the collision. And it was entirely upon this latter rule that we concluded, in view of appellee's own evidence that the charge in question was erroneous as not authorizing the jury to consider that particular phase of the case as made by the evidence in the light of the law applicable thereto. The appellee did not claim that he was confused and misled by the conflict in the orders, considered together. He claimed that he never received or knew of train order No. 14, and in operating the train relied entirely on order No. 8 and the information in the clearance card that "the block" was "clear." He testified, in particular, that if he had received order No. 14 he would have obeyed it and stopped at Camp's Switch until 5:15 o'clock a. m., even though the clearance card showed the "block clear," and even though and notwithstanding order No. 14 was on form 19, and "no matter on what color of paper it was written."
The motion is overruled