The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-04-02

not under anv schedule. Had the OPP
! orator at Vass promptly notified the
dispatcher at Raleigh, he could have
notified and held No. at Southern
Pines. or directed it to take the siding
at Manly, for the collision occurred
only miles from Southern Pines,near
Manly and six miles from Vass. 1t
was also the duty of the operator at
Southern Pines to notify the train dis
patcher at Raleigh of the departure
of No. s, but the train dispatcher at
Raleigh had to ask The latter'S un-
eaSiness, after actually receiving ontice
of the departure of 900 extra" from
Vass, and his efforts to stop the trains,
tend to show that he had failed to
notify No. 6, as well as extra goo"
where they must pass. Had he done
so, he would have mad no uneasiness,
as there were three side tracks be-
tween Vass and Southern Pines. Stew
art having received orders as to pass
ing No. but no orders as to passing
No. upon receiving clearance card
from the agent at Vass, proceeded in
accordance with his only other order
to go from Raleigh TO Hamlet ex-
pecting. of course to get orders, if any,
at Southern Pines. The companys rule
TIA (a) which Stewart had in his
pocket when killed provides Receipt
of train orders does not give train
the right to leave until signal is set to
safety or clearance card is given" 1t
was in evidence that meeting orders
were always given to extra trains"
that Stewart had such orders as to
No at Vass, and there was told there
were no other orders for him and was
given the clearance card (found on his
dead body) which under the above
quoted rule gave his train "the right
to leave.'' He could get no further or
ders till he Eot to Southern Pines.
There was negligence in the train dis
patcher in giving neither Stewart nor
No 6 notice of meeting point, and in
the agent at Vass in giving him a.
clearance card, which could only
mean ''go ahead, the way is clear
There was much sand in the argu
ment as to the provisions as to "su-
perior' and "inferior' rights of way
in the rules and regulations of the
company, but Rule ASS expressly pro-
vides: The terms superior right and
inferior right in these rules refer to
the right of trains under time table
and train rules, and not to rights UNI
der special orders" This extra No.
geo was running solely under special
order ito go to Hamlet and with or
ders to pass No. s at Vass, and
clearance card" at the latter place,
which authorized the engineer to go
on to the next point, where he could
get orders. If it did not give him that
authority, for what pu. pose was it give
him? He could not know what trains
were late. and after his clearance
card he had a right to presume that
if there was any other train in his way
it had been or would be notified not to
leave Southern Pines.
But as we have he Id that enough
has been shown to require the facts to
be submitted to the jury, it is unneces-
sary to consider the other grounds of
negligence presented As to the eighth
ground, if there had been no telegraph
office between Raleigh and Hamlet, or
such offices only fifty or twenty miles
apart, it would certainly be negligence
as a matter of law to risk the lives of
employees and passengers without
such necessary adjuncts in operating
the defendants trains. Waother 1T
was negligence to fail to have tele-
graph office between VaSS and South
ern Pines a distance of eight miles,
when the single track was so crowded
as 20 require three stations, or sidings,
between these two points. and when
(as on this occasion) such interme-
date telegraph office would have
saved the lives of four men and the
Gripping of others is probably a mix
ed question of fact and law which
should be subitted to the jury. The
question whether the receipts of such
telegraph office wCulC be enough to
make it profitable to he company to
maintain it an entirely secondary
consideration if it was reasonably ne
cessary for safegua riding of the lives
of employees and passengers.
Failure to have Block System.
Nor is it necessary to hold now that
the failure OF this great through line,
crowded with business, to adopt the
BLOCK system is negligence which as
this court in the Greenlee and Troxler
cases, 122 n. c. 70 and 124 N. c., 191,
held in regard to the failure to adopt
automatic couplers would render the
common carrier liable per Sc for any
death or injury caused by the failure
to adopt them. The evidence in this
case is that the "blocls system is in
almost universal use, and that if it had
been in use on this system, this cataS-
trophe could not hav-- occurred. The
ruling of the court in Whitsell V. Rail-
road, 120 n. G. 557 Is that it is Gull
pable negligence making the carrier
responsible for all injuries resulting
therefrom, to fail to use ANY approx
ed appliance which is If general use
and necesarsy for sGiC.y." This rule
has been reiterated and adhered to in
every case since, including Bottoms V.
Railroad, 1873 n. c 473. The writer
however is free to say now, speaking
for himself that it is culDable negli-
gence when any employee or passenger
loses his life or sustains injury in a
'head-on" collision from failure by
provide the "block system" which
would prevent the possibility of that
class of collisions. The obtaining of
higher dividends is entirely a secon-
Diary matter to the safety of employees
and passengers, as t is also to the con-
venience and comfort Of the public, foi
which end alone charters to railroads,
with the power to condemn rights OF
way under the power c; Eminend Do
main, are granted For guarantee of
that safetey and convenience, the sole
resort is to the courts and juries of
the land.
Concur in Result Only.
The plaintiff had a constitutional
right to have the question of negli-
gence, upon this evidence, submitted
to jury, and in denying her that right
there was error
Justice Brown tool no part in the
decision and Justice Walker wrote an
opiOiOD ooOc1JrriDpr in, 1le reSI1It IN tha