Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-11-22
THE wHEATLEy CASE.
Full Opinion of the Court Allowing
the Non-sult.

A Decision That Has an Important Bear-
ing Upon All Actions for Damages on
Account of Injury to or Death of Rail-
road Employees.
Following is tho full text OF the
opinion Of the superior court granting
non-sult in the case of Wheatley VS.. the
p, w. d. B. Railroad Co.:
This is an action brought by Hannah
Wheatley, the widow OF William Is.
Wheatley, deceased; 10 recover damages
for the death of her said late husband,
caused as she alleges by the negligence OF
the defendant company,
The material facts proved by the plalntiH
are substantially as follows:
William b. Wheatley died from injuries
received in a collision of freight train No.
II, with the Norfolk express passenger
train No. 81 at Porter's Station, on the
Delaware division of the r., w. y y. XIII,
on the morning of the 2Sd day of August,
1898. Both trains were schedule trains
southbound from Wilmington to Delmnr
and used in operating said Delaware diyis,,
ion. No. OF was of superior class and
had the right OF way. Both were equipped
with engineer, fireman, conductor ana
brakemei.
William B. Wheatley. the deceased, was
| the fireman ON express train No. ", and
| w. Galway was the rear brakeman Of
| train No. II and Us such the liaginan
thereof. On the night Of August 22d, 1898,
| owing to an accident at ST. AIMS Cross
| ing and an unusual number of peach
| trains, the northoound trains numbers VI
| and 96 on the same division were several
| hours behind time, anu the Newark "Y''
| was somewhat obstructed With peach cars
| for through trains
Train No. II left Wilmington about 10
o'clock on the night of that day, stopping
at New Castle aud Bear Station on the way
| down to shift cars, reaching Porter
| Station about midnight. As IL approached
Porter's station, it was stopped by the red
| light on the north distance signal which Is
,0O0 feet north of the Delaware City rail
road crossing. South of thar signal it was
again stopped by red lantern swung at or
near the north end Of the station platform.
| Again it was stopped at the station by the
target red light, for orders, and was there
ordered 10 switch off ON the Newark "G''
| and thereby give Gear way TO the express
train No. 90 then about due. When the
train stopped above the north distance
| signal, Calawav, the hagman, threw out a
fuse, and when the order was given to
switch off the train on the 'lP ne went
back hundred yards or more to the rear
OF his train with his red lantern to protect
the rear of his train from collision with
He remained here until he thought his
train had gotten off on the ~" clear OF
the main truck Acting on that belief, he
left his post of warming and went over
to the rear of his train on the ~" Al
the time he so left his post of warming. the
following express Grain No. " was due al
Porter's Station, Getaways train, in fact
had not gotten clear of the main track
the engine, tender and two cars were sui
on that track when express No. ~, with
out notice of danger, with open throttle
and at full speed, dashed into the seconC
car from the engine of train No. II, Will
such force that the locomotive OF the ex
press train was hurled over backward ant
, | Wheatlev, its fireman, was SO injured IL
! the wreck that lie died the same day.
Under the rules of the company, 1t wa
, the duty of George w. Galway, the rea
brakeman and flagman of train No. II
WHEN his train stopped, Immediately to y
back with danger signals to stop train NO
% moving in the same direction at poin
go yards from the rear end of his train, t
place one torpedo on the rails; then bach
. LOO yards from the rear of his train, am
place two lorpedoes on the rails 10 yard
apart; then to return to a point 80 yard
from the rear end of his train, and ther
remain until recalled by the whistle Of hi
) engine; but if the train No. 81 was du
, within five minutes, then to remain ut hi
. |
4 he should be recalled by the whistles q
e his engine
Galway states that he did not place tn
! torpedo us required by the rules, and tina
he did not go back 800 yards from the rea
y of his train and remain there until trai
u No. 81 had arrived, although he was we
0 acquainted with the rule and knew that
II was his duty to do so. but that he left hi
s place of warning, and went to the rear c
his own train, without giving tine DANCE
!. signal, upon the suppositIOn or belief The
\ his train was safely off on the ''H.'
u James A. Grub, the engineer of expires
g No. 81, states that if the danger signal n
y quired by the rules had been given
il Calaway, his train would have bee
y stopped Immediately. That no such sign'
was given.
1t is proved that the distance signals ,
Porter's Station, one of which is locate
900 feet north of the Delaware City cros
!. ing, and the other the same distance sout
of the crossing, are used only for the pu
pose OF indicating the condition of Il
Ig Newark IL Delaware City railroad whiC
ie intersects the Delaware division at til
o. point. That the target signal, which
5. located at the station, is used only TO ste
,s trains for orders. 1t was further prove
q. that each train, when it went out, carrie
&c with it the appliances and means II
- giving signals of danger to an on-comir
1
lie stopped on the track at stations or els
where from any cause whatever-consls
I'd ing of fuses anu torpedoeS to be used upC
IL the track, and the red danger signal la
"a tern, all Of which were to be used by Il
d rear brakeman or tlagman of the obstruC
- ing or stopped traini and further, til
rs. such peculiar use OF these respective 81
IS mails, was well known to the railroad Ell
IS ployes, and governed them i'll the moy
ss meut of their trains,
ce Upon this evidence the plaintiff rest
&c his case. Counsel for the defence NOV
~ for non-suit, upon the ground that Il
y only negligence proved i'll the case, eth
us expressly VI by reasonable legal inIerent
~, was that of George w. Galloway; who
lie they claim was d fellow-servant wi
sic Wheatley, for whose negligence the {
til PENDANT company cannot be held liable.
az, Plaintiffs counsel resists the non-su
- on the ground that there was other e
dence OF negligence OF the company. I'll
George w. Galway was not Il tello
servant, but an agent or vice principal,
a. whose negligence the company is liable.
" These contentious require the determil
"e ton OF two questions: |. We're Wheat
and Galway Ielow-servants. 2. Was TIT
VI amy negligence proved other than that
ed Galway, wnich may be imputed TO t
he company.
wa confusion in Judicial reports Us the qu
w, ton rs to what constitutes the relation
~ feilow-servants, and there is no branch
,ed the law 50 fraught with perplexity. JUG
m Bailey, in his recent admirable work
of Masters Liability for Injuries to S
;as wants." page % says: line authorit
ia. are so confused i'll determining who
in servants, and upon what principle I'll
aa should be determined, that it require
NY thorough acquaintance with the ductr
Sc as recognized and declared by the courts