
    Devine v. Savannah, F. & W. Railway Co.
    ' Where a locomotive engineer is warned, by a signal of danger ahead . not to proceed with his train, and immediately thereafter another • signal is given which indicates that he might proceed with safety, but both signals are continuously displayed together, so as to leave it in doubt which signal should be regarded, it is negligence for the engineer to go on with his train, and if he does so and a collision ensues in which he loses his life, his widow cannot recover from the company for his homicide thus occasioned; the law being that, if an employee is guilty of any negligence contributing to an injury to himself, he cannot recover if the injury does not result in hidKeath, or if it does so result, that no right of action accrues to his widow.
    August 27, 1892.
    Argued at the last term.
    Railroads. Master and servant. Negligence. Non-suit. Before Judge Atkinson. Pierce superior court. March term, 1891.
    Mrs. Devine sued the railway company for the homicide of her husband, one of its locomotive engineers. The court granted a nonsuit, and she excepted. Only two witnesses were introduced as to the circumstances attending the disaster, the fireman upon Devine’s engine, and a flagman of the train which that engine was drawing. The fireman testified : The train on which Devine was engineer was a regular passenger, known as second section of train number 78, going from Jacksonville towards Savannah. It was a pretty fast schedule, but I cannot say what the rate of speed was. We followed the first section of train 78 all the way from Jacksonville. In my judgment we were allowed to run five minutes between, but I cannot say whether we were under or over that time. When we got to the 73 tui’nout we ran into the first section, and I learned that Devine was killed. I was not on the engine when the collision occurred, but jumped off before we struck, Reaving Devine on the engine. It was getting dark when we left Blackshear, one of our regular stops, and where the first section also stopped. After we left Blackshear I saw that the first section was ahead of us by the light from the engine when the fireman would open the furnace door, and continued to see it by the light off' and on until they got to the bottom of the hill, when I did not see it again. We were then going over the hill at McDonough’s mills. They were between one and two miles off' at this time. There is a switch and turnout at the 73 mile post. When we were approaching the mile-post, Devine was at his place with one hand on the throttle and the other on the lever. When we got inside the mile-post, he put his brakes on and took them off. Close to the switch some one waved us down, and beyond that some one was waving us to come ahead; that is, we thought it was for us to come ahead; it was dark at the time. Devine answered the signal by blasts of the whistle. The engine was then going at a good speed. Just then some one burst a fusee on the track. When I saw tliis I put the lever as far back as I could get it, and jumped to the ground. 'When the fusee was burst Devine and I were looking ahead. There was no light behind the first section. There ought to have been a red and a white one on the rear car. The first thibg we saw was the fusee, which is about eight or ten inches long, used to make a light in case of danger, and then a sleeping-car just ahead of us about four or five car-lengths. We reversed the engine and did all we could to stop her, but were so close it was too late. Cannot say how far from the sleeping-car was the man who burst the fusee, nor how far from the car was the fusee, but when it burst we then saw the car. The man that lighted the fusee was between us and. the fusee. There was no one else there. He was on my side of the track when the fusee was burst. I do not know of any signal being given our train to stop. The fusee was the first, and he took up the engine. There was a freight-train on a side-track there, coming towards Blackshear. There was nothing in our way except this first section that we ran into. I do not know how fast the train was running when I jumped, but I judge between ten and fifteen miles an hour; it might have been more or less. We were not running as fast as we generally run, or I could not have jumped off without being killed. I think this accident happened between four and five telegraph poles from the switch, and do not know how long the switch is. Do not know how far it was from where we struck that steam was put on. We were on this side of the switch (towards Blackshear) when we saw the signal to come ahead. When he saw the signal he answered it with the whistle, jerked the engine up and put steam to it. It was some distance from where he put steam on to where we struck; I cannot say how far. The switch is a long one. I learned from the rule-book that when one section follows another, trains are to run five minutes apart. Think it is one or two miles from McDonough’s mills to the place of the collision, and we were running between twenty and twenty-five miles an hour when we passed McDonough’s mills. We were this side of the mill (towards Blackshear) when the first .section went over the hill, the last place that I saw the light from the front engine. I saw one of the tail lights at this place. It was a green light. The other was not lit, or I would have seen it. The other should have been a red light. I looked for the lights, and Devine made some remark about it. Saw the green light at Blackshear. It was then getting so dark you could not see very far on the railroad. From where I saw the light from the fire in the first engine to where the accident happened, was from one to two miles. From the time the first section went over the hill we went up grade until we got to the top of the hill; when we stalled down grade the engineer put on his brakes and kept them on until we got this side of the mile-board, one mile from 73 mile turnout. Devine put the brakes on when he saw the person waving us down. This, signal was. given by a lantern being swung across the track, and indicated to stop. ¥e did not stop because some one ahead was waving us to come on. The two signals were not given at the same time, but when the last signal was given we went by the man waving us down at the switch, and the man beyond waved us ahead; there were two signals at the ■ same time. The nearest signal was a lantern across the track, and the one ahead was swung up and down and meant come ahead. Cannot say how far^ one was from the other. Devine obeyed the first until he saw the other, and then paid no more attention to the first, but opened his engine and started ahead again. I do not know how fast we were then running, or how far we were from the switch.. Wfien he put steam to the engine she went faster. When we saw the signal to go ahead wo were about one hundred yards from and before reaching the switch. The engineer put on steam then. We were inside the switch before he reversed the engine. Our speed was increased from the time we got the second signal up to the time we got to the west switch, and we were, of course, going faster than ten or fifteen miles when we got to that switch; cannot say how much more. No’ attempt was made to stop the engine until we saw the' fusee. The signal to come ahead was given while the one to stop was given too. I do not know when the-signal to stop ceased; when we passed it was swinging ; he was standing at the switch; I do not know whether it was to stop us or not; some one just kept swinging' the signal to stop until we passed him. ¥e might have been running faster than ten or fifteen miles an-hour. When I jumped I turned a somersault and struck on my side; do not remember getting up ; they say they found me in a mud-hole. It was a hard blow, and' the-train was going pretty fast. He did not have time to-take it up until he saw the fusee. The cab was knocked off the engine; the smoke-stack of it was torn all to pieces. The indication was that it was going pretty fast when it struck the sleeper.- We had no steam ©n at all until we saw the signal to come ahead. I do not know what force is necessary to break an engine; sometimes-such things happen and tear it to pieces, and sometimes; it don’t. I could have seen those lights if they had been-burning. In approaching the switch the train was slowing up to stop and could have easily been stopped. The engine was under control at that time, but not when we passed the west switch. There was smoke coming from the engine on the side track and from the engine of the first section, but not much. I do not know how about the smoke preventing me from seeing the tail lights, for when the fusee burst I saw the end of the sleeping-car and did not see any light. I saw one light at Black-shear, a red light. I do'not know whether on account of the fusee I could not see the light on the end of car or not; I could see the lights if they were burning. The air brakes on the train, except on one car, were all right; that one was the car next to the engine, and that would not prevent our stopping. The train was in good order so far as I know. The man who was swinging the light “this way” was at the switch on the side of ithe track where the two tracks run together, on the left hand side going towards Savannah where the other train uvas. That other train was on the siding, and the siding •was on the left hand side. He was at the switch this ■side of the engine of the freight-train, which was heading towards Blackshear. I cannot tell how Devine could tell that signal was for his train or for the freight-train. It might be for any one. ¥e did not know, we could not tell; it might be for him to stop, it might be for the other train to stop. I cannot say how long the signal to come ahead was waved;’ it was waved until we saw the fusee burst; then we saw there was danger. ¥e saw the come ahead signal after we passed the switch; did not know what it meant; did not know there was any danger until we saw the fusee burst. Both the lights that were waved were white lights; the danger signals are red lights; when a red light is. waved it means danger, to stop; when a white light is waved it also means to stop. The kind of signals given for a train to stop are torpedoes and fusees; then there is danger ahead. Torpedoes are put on the track,, and fusees held in a man’s hand that lights it. The man has to go back some five or six telegraph poles, I think; the fusee we saw was only three or four car-lengths from the sleeper. Devine would not run over a red light; never ran over one while I was with him, nor a fusee, which is a red light. I cannot say a white light swung across the track means just as much as a red light. Do not know that an engineer has no right to run by a white light swung across the track; do not know what right they have to disobey it. If a man stopped whenever he sees a white light, he would not go anywhere; oftentimes on the side-track a man waves a lantern to stop; he waves down, but there is no stopping-place. A white light swung across the track means to stop; there is no question about that. He swung the light until we got up to it and was swinging it when we passed it. The headlight on the train on the side-track was showing up. We might have been five or six car-lengths from the train we collided with, when I first saw it. The headlight shows further than five or six car-lengths. Of course I could not say whether it was any further, or that far. At the same time I saw the man at the switch, I saw the freight-train behind him on the side-track; cannot say whether the man waving the light meant it for Devine. Devine put his brakes on to keep the train under control. The up and down light was six or seven ear-lengths from the other. Do not know that Devine had a right to expect to meet the freight-train at that siding. I did not know it. I expected to meet it at the regular meeting place. The lantern used by the man giving the signal to stop looked like a train hand’s lantern. The freight-train on the siding was standing still when I first saw it; do not know that the signal was not intended for that train; and it was standing still when we passed the engine and before the fusee burst'. The man was standing by the side of the main line, and swung across the main line; he was not standing on the track, but swung the light at right angles with the track, not across the track. I knew that we had to pass that freight-train. The regular passing point was about two miles from Black-shear. I knew we had not passed it but had a right to expect to pass it at any time. In answer to a question, “ "Was the signal at the switch a signal to the main line?” he- answered, “A man stood at the switch, it appeared to me to be signalling the main track; I do not know.” At that time the train on the siding was stationary. I did not know it was stationary until we got up to it. I do not know that the signal was for the main line, it was near that line. The tracks run together there. The main line is on this (Blackshear) side of it, right in front of it; he was standing on the end of the switch ties. I do not know whether his face was to the main line; he waved his light in that direction with his right hand.
   Judgment affirmed.

Bleckley, C. J.,

dissenting. Where in a situation of peril produced, not by the servant, but by other servants for whose acts the master is made responsible by statute, the servant (a locomotive engineer) received a signal of danger warning him not to proceed, and immediately after that signal was given a signal of safety was displayed which invited him to go forward, and whilst both signals were in sight and being continuously displayed together the engineer went forward and a collision ensued in which he lost his life, whether he was negligent or at fault in so acting on contradictory signals held out to him by the company to guide his action, is a question of fact for the jury, it not appearing that the rules of the company instructed him how to interpret confusing or contradictory signals, or what to do when a second signal might seem to cancel the first and when neither of them was discontinued or withdrawn. In my opinion, it was error to grant a nonsuit. The engineer lost his life by mistake of the company, and his widow lost her case by mistake of the court.

The flagman testified, in brief: There were five minutes time between the first and second sections. The first section carried a green light on each side of the engine as a signal to indicate that another train followed it, having the same schedule rights. The first section was due at 73 turnout at 5.46 p. M., the second at 5.51, and the second reached that point at 5.51. As the second section approached the west end of the switch, the engineer put on the air-brakes and the train was slowing down, but I cannot say what the speed was when we hit the other train. I knew that the next turnout was number 73, and that we would meet a freight-train there if it was on schedule time. I felt the air-brake put on and that the train was slowing down, and was going to see if we passed the freight-train there, and as I- was in the act of opening the door the crash came. I did not remember seeing or hearing any signals before or at the time of the accident. At the time of the collision I was at the rear end of the rear coach of the second section.

Lester. & Ravenel, D. W. Rountree and S. W. Hitch, by brief, for plaintiff.

Erwin, duBicnon & Chisholm, S. T. Kin&sbery and W. G. Brantley, for defendant.  