# Northern Pacific Railway Company v. Dixon

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## Dissenting Opinion

    Douglass White
United States Supreme Court
194 U.S. 338
Northern Pacific Railway Company v. Dixon
Argued: and submitted April 13, 1904. --- Decided: May 16, 1904
This case is before us on questions certified by the circuit court of appeals for the eighth circuit. The facts as stated are that Chauncey A. Dixon was employed on December 25, 1899, by the Northern Pacific Railway Company as a fireman in operating extra freight train No. 162, and while so engaged was killed by means of a head-end collision of that train with extra freight train No. 159. The company had made and promulgated time-tables for its regular trains, and had adopted reasonable rules for the operation of all its trains. The time-tables did not and could not provide for the running of extra trains. The company had in its employ a train despatcher at Missoula, Montana, who had general power and sole authority to make and promulgate orders for the running, on the division of the road on which this collision occurred, of those trains which were not governed by the time-tables. A large proportion of its freight trains on this division were run as extra trains, and the times of their arrival and departure were not shown on the regular time-tables, but their movements were made upon telegraphic orders issued by the train despatcher upon information furnished by telegraph to him by the station agents and operators along the line of the road. All these facts were known to Dixon. One of the rules of the company was: 'Operators will promptly record in a book to be kept for the purpose, and report to the superintendent, the time of arrival and departure of all trains, and the direction in which extra trains are moving.' The reports mentioned in this rule were made to the train despatcher, and he was vested with the authority of the superintendent to issue orders for the movement of trains.
These two freight trains were running in opposite directions, train No. 162 going east. It arrived at Bonita at 12.35 A. M. and left there at 12.50 A. M. The local operator and station agent at that place was asleep, and did not know of or report its arrival and passage to the despatcher. None of the crew of that train were aware of the fact that train No. 159 was coming west. The railroad had but one track. At 1.05 A. M. No. 159 reached Garrison, about 48 miles east of Bonita, and that was reported to the train despatcher. Thereupon he asked the operator at Bonita, by telegraph, whether No. 162 had arrived there, and the operator promptly answered that it had not. This question was repeated, and the operator was asked if he was sure that No. 162 had not passed Bonita, and he replied that he was sure that it had not. Thereupon the train despatcher issued orders for the movement of these two trains, which were sufficient to guard against collision if the information received had been correct, but as it was not correct, the movement of the trains resulted in a collision and the death of Dixon, to recover damages for which this action was brought. Upon these facts the circuit court of appeals certified the following questions:
'First. When a local telegraph operator is called upon specially by a train despatcher to give information relative to the arrival of a train at his station, to enable the despatcher to formulate orders for the movement of other trains, does the local operator, in the matter of giving such information, act as a fellow servant of train operatives in such sense that the master is not liable to train operatives who are injured by obeying an erroneous order of the despatcher, that was induced by false information given by the local operator?
'Second. Is the negligence of a local telegraph operator and station agent of a railway company in observing and reporting by telegraph to the train despatcher the movement of trains past his station, which causes the injury or death of a fireman of the company, without any fault or negligence the fireman, the risk of which the latter assumes?' of a vice principal, for which the railway company is liable in damages to the fireman or his personal representatives, or is it the negligence of a fellow servant of the fireman, the risk of which the latter assumes" Messrs. C. W. Bunn, Emerson Hadley, and James B. Kerr for the Northern Pacific Railway Company.
[Argument of Counsel from Page 341 intentionally omitted]
Messrs. A. M. Antrobus, D. J. O'Connell, and R. J. Burglehaus for the administratrix.
Statement by Mr. Justic
e Brewer:
Mr. Justice Brewer delivered the opinion of the court:

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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