
    McLEOD v. GINTHER’S ADMR.
    
      (Kentucky Court of Appeals,
    
    
      October 10, 1882.)
    1. Negligence—Misleading Train Dispatch. A railroad company is liable for damages resulting from a train order, sent by telegraph, which was so worded as to be subject to two constructions.
    2. Res Gest^;. What constitutes.
    3. Fellow Servant. The liability of a railroad company for injuries committed by one of its servants against another depends upon their relative positions. It is not responsible when they are co-equal in power, authority and degree, unless the negligence is fixed upon the company or its agents who are superior in rank to the injured servant, or who are not engaged in the same department of the service.
    4. Same. Where servants are of the same department of service, and one has authority to command the action of the other, the company will be responsible for the gross negligence of the servant superior in authority ; and where the servants are not engaged in the same department, but in the same common employment, the company is liable for their ordinary neglect.
   Pryor, J.

This was an action to recover damages for the willful neglect of the appellant’s servant in sending dispatches to two conductors of trains, which were to run on the same day oVer the same part of its road.

The appellant denied any fault on the part of its servants in sending or wording the dispatches, and pleaded contributory negligence of the ajrpellee’s husband.

The jury, under proper instructions, found a verdict for the sum of $7,500 in favor of the appellee, and the appellant took an appeal, on which we are asked to reverse the judgment rendered in accordance with the verdict.

The dispatches were alike, and read this way:

“ No. 103, J. E. R. N. Y., 4:13.
Fish extra East; can have until ten, 10, o’clock a. m. to make Beard’s for No. 2 and No. 4.”

Fish construing the dispatch to mean that he had until ten minutes after 10 o’clock to reach Beard’s Station, started east on engine with no train attached, and when in about one mile of that place, at seven minutes after 10 o’clock, met and collided with train No. 2, going west, running at the rate of near forty miles an hour, and the appellee’s husband, John Ginther, and two other persons were killed. Fish was conductor and Ginther engineer on the engine going east.

The appellee introduced asa witness Waters, the engineer on the west bound train at the timé of. the collision, who testified, as shown by the following questions and answers taken from the stenographer’s report of the evidence:

Questions by plaintiff’s counsel :
“ (⅞. Who was the conductor of the train Ginther was on ?
“A. Mr. Fish.
“Q. Did you see him?
“A. Yes, sir.
Q. How long after the collision ?
“ A. He was the first man I met.
“Q. How soon was that?
“A. Well, when I gathered mj^self together I was on the right hand side coming this way, and 1 saw the engines were pushing out to the left, and I went out behind the train to look for my fireman, when Mr. Fish he said—
“Counsel for the defendant objécts to the witness stating what Mr. Fish said. Objection overruled, to which ruling of the Court the defendant excepts.
“Q. What did you say to Fish, and what did Fish say to you concerning the collision ?
“A. Well, he was the first man I met. He came up to me and commenced pulling out his watch, and says, ‘What time have you got?’ I says, ‘I have no time to compare time now; there is my conductor.’ He says, ‘I had until 10:10 to make Beard’s.’ I-says, ‘No, you had not.’ He went on to my conductor ; and that is all that passed between us at that time.”

The appellant insisted that the statement of Fish, that “I had until 10:10 to make Beard’s,” was incompetent, because not a part of the res gestee.

What constitutes res gestee is often difficult to determine, as the relationship of facts, where the thing done is composed of different agencies and actions separated, more or less, in point of time and manner of performance, is not always palpable, and, though necessary, may frequently be obscured by the multiplicity of particles, which go to make up the main fact under consideration. (1 Greenleaf, Sec. 105.) Hence the particular facts of each case must determine the relevancy of declarations sought to be proven as part of the acts or facts constituting and legally belonging to the cause of action.

We have been cited, and still adhere, to the rule on the subject laid down in the case of Dills v. May, in which it is said:

“ The general rule is, that all declarations, made at the same time the main fact under consideration takes place, and which are so connected with it as to illustrate its character, are admissible as original evidence, being what is termed a part of the res gestee—in other words, a part of a thing to be done.”

Two things unite to constitute the cause of action in. this case. First, the injury to appellee’s husband; second, the acts, which began with the sending of the several dispatches, and ended with the accident, which was the result of a misconstruction of the dispatch.

And anything that was said during the time these facts took place, which was so connected with them as to illustrate their true character, belongs to the res gestee, and may be proven as original evidence. In the case of Hanover Railroad Co. v. Coyle, 55 Penn. St., p. 402, where a peddler’s wagon was struck, and the peddler injured by the negligence of the engineer, the latter’s declaration, made after the infliction of the injury, was admitted as a part of the transaction itself, the Court saying:

“We cannot say that the declarations of the engineer was no part of the res gestas. It was made at the time, in view of the goods strewn along the road by the breaking up of the boxes, and seems to have, grown directly out of and immediately after the happening of the fact.”

The case is in point, and it is supported by high authority.

Lord Chief Justice Holt, in an action for assault and battery of the wife, in the case of Thompson and Wife v. Trevanion, Skinner, 402, permitted “ what the wife said immediately upon the hurt received, and before that she had time to contrive or devise anything for her own advantage, to be given in evidence.” Also see Aveson v. Kincaid, 6 East.; King v. Foster, 6 Carrington and Payne; Commonwealth v. Pike, 3 Cushing; Rawson v. Haigh, 2 Bingham; Beaver v. Taylor, 1 Wallace; Insurance Co. v. Mosley, 8 Wallace.

Mr. Starkie says:

“ If the declaration has no tendency to illustrate the question, except as a mere abstract statement, detached from any particular fact in dispute, and depending for its effect entirely on the credit of the person making the declaration, it is not admissible. But if any importance can be attached to it, as a circumstance deriving a degree of credit from its connection with the circumstances of the case, independently of any credit to be attached to the speaker or writer, then the declaration is admissible.”

It was important to show what .Fish and Ginther thought of the meaning of the dispatch, while they were acting under it, as the negligence in this case consists of the wording of the dispatch, so as to mislead them; and they were bound by the rules of the company to understand it alike before acting under it.

The declarations of Fish were made within a few seconds after the casualty, in view of the wrecked train, and amidst the search for persons whose fate was then unknown, and while Ginther, who lived but thirty minutes, was dying from the injuries he had received.

He had no time to contrive or devise a falsehood by which to exonerate himself from blame; and his declaration was so connected with the circumstances then surrounding him, and which form a part of this case, as to give it importance in determining the fact that he and his engineer had run the engine with the honest belief that they had until ten minutes after 10 o’clock to reach Beard’s Station.

The declaration related alone to the 'declarant’s state of mind when he received the dispatch, and the continuance of that state of mind while he was acting under it, and it was made before the expiration of the fatal ten minutes in question, and prior to any knowledge on his part that he, and not the conductor and engineer of the west bound train, had misconstrued the dispatch, the first information of that kind being communicated by Waters’ response, “ No, you had not,” to his declaration. Therefore, if we ignore the credit to which Fish may have been entitled as a truthful man, his declaration, made under the circumstances, impresses the mind with confidence in its truth, and is entitled to be given its weight, as any other fact going to make up the whole transaction.

The fact that Fish and Ginther acted under the dispatch, as giving them ten minutes after 10 o’clock to reach Beard’s, shows that they put that construction on it, and increases the confidence in Fish’s declaration, which was a part of the res gestse, and therefore admissible evidence.

It is contended that Fish and Ginther were co-equal fellow servants, and, for that reason, their declarations were inadmissible for each other, and the company not bound for the negligence of one that resulted in injury to the other.

The liability of a railroad company for injuries committed by one of its servants against another depends upon their relative positions.

It is not responsible where they are co-equal in power, authority and degree, unless the negligence is fixed upon the company or its agents, who are superior in rank to the injured servant, or who are not engaged in the same department of service!

Where servants are of the same department of service, and one has authority to control the actions of the other, the company will be responsible for the gross negligence of the servant superior in authority; and where the servants are not engaged in the same department, but in the same common employment, the company is liable for their ordinary neglect.

Under these rules, if Fish had been guilty of the negligence, in this case the liability of the company would have depended upon the fact whether Fish liad authority to control Ginther’s actions and movements or was a co-equal servant, neither superior nor subordinate, with Ginther. But it is not necessary to a determination of this case to decide as to their relative power and authority.

For if they were co-equal, Ginther’s wife had the right to recover from the appellant for the death of her husband, even if he did agree with Fish in the wrong construction of the dispatch, if the language or figures of the dispatch were such as to mislead them, notwithstanding they used ordinary, care in deciphering or construing it.

It must be concluded, from the evidence in this record, that Fish and Ginther both misconstrued the dispatch, and the train dispatcher intended to inform each conductor that their trains had only until 10 o’clock to make Beard’s, and the question of negligence at last turns upon the manner of wording the dispatch and the rules regulating the mode of dispatching.

It is proven that, under the rules, of the company, time may be repeated in a dispatch as a precaution against misapprehension ; but there is no rule that authorizes the word “ ten,” followed by the figures “10” without brackets, to be used in dispatching; and even if such a rule had been adopted by the company, it would not be a safe, prudent or reasonable regulation for the government of the action of its conductors and engineers, whose slightest misunderstanding so often results disastrously.

It changes the ordinary meaning of the language and figures, and substitutes an artificial signification for them likely to be productive of misunderstanding amongst the employees. So, whether the accident resulted from the obscure meaning of the dispatch, without regard to the rules, or was caused by the want of caution in adopting such rules, the company is liable, unless the deceased, knowing the rules and understanding the dispatches, wilfully undertook the journey.

The evidence does not authorize the belief that he was guilty of such suicidal recklessness, or that the proximate cause of his, death consisted in anything else than the negligently worded dispatch.

Wherefore the judgment is affirmed.  