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An excursion train heavily laden and consisting of twelve coaches, a dining car, a baggage car and an engine, krown as No. 2nd 36, being the second section of regular train No. 36, reached Dunkirk about 9:10 A. M. on its way east to Niagara Falls. There, at 9:15 A. M., the following order was delivered to the conductor, William H. Harrison, and to the engineer, Lewis Brewer, and was clearly understood by them just as it reads: "No. 37, engine 65, has until 9:25 A. M. to make Sheridan; and No. 41, engine 33, until 9:30 A. M. to make Summit for you; meet and pass No. 29 at Silver Creek instead of Summit.”
Nos. 37, 41 and 29 were freight trains running west and had severally received their respective parts of this order. The orders were in form and substance as prescribed in the rules. At Sheridan No. 37 had not made its time, and under the rule No. 2nd 36 proceeded on enst to Summit, a point about two miles west of Silver Creek, where
ere was a siding. Before the expiration of the time for No. 41 to reach Suminit, the freight No.37 arrived there, and a brakeman from No. 41, named James E. Reed, got off of 37 and on to No. 2nd 36, and told both the conductor and engineer of that train that No. 41 was broken down east of Irving siding, a point two or three miles east of Silver Creek station, and that they would have to look out for it, and be held there. The excursion train then went on and reached Silver Creek about 9:45 A. M. The train stopped for passengers; the conductor inquired for orders and finding none, gave the starting signal, and the train proceeded at 9:47 a. M.
After the brakeman of No. 41 had left his train east of Irving siding, and had gone upon No. 37 to carry his notice to the excursion train of the location and condition of No. 41, the local freight No. 29 going west, overtook No 41. It immediately shoved No. 41 on to the Irving siding, and after a delay, thereby caused, of twenty-five or thirty minutes, started under its order to meet and pass the excursion train at Silver Creek. This train consisted of an engine, five loaded cars, an empty and a caboose. When about three-quarters of a mile from Silver Creek in a cut and on a reverse curve, and while running at the rate of about fifteen miles per hour, it collided at 9:50 A. M. with the excursion train approaching from Silver Creek and running at the rate of about ten miles an hour. The concussion caused the engine of the excursion train to mount the engine of No. 29, and the baggage car of the excursion train to telescope the smoking car to a point about three seats from its rear. Upon the rest of the excursion train the blow was hardly felt, and seems to have done no injury.
Upon the foregoing state of facts alone considered the responsibility for the accident clearly rests upon William H. Harrison, the conductor, and Lewis Brewer, the engineer of the excursion train. They had a positive order to meet and pass No. 29 at Silver Creek; in going beyond that point before the arrival of No. 29, they violated a clear and explicit order. Certain printed rules and instructions of the company, which these men knew, or ought to have known, when considered in connection with their conduct, make this violation appear quite inexcusable.
Instruction No. 167. “They (conductors) must in all places and circumstances regard the safety of the train as of the first importance, and leave nothing undone which will secure safety.”
206. “They (enginemen) will be held responsible jointly with the conductor for the safety of the train, and for the faithful and intelligent use of all the precautions required by the rules, etc.”
209. “They (enginemen) are under the direction of the conductor as regards the management of trains, but will not obey any instructions that may endanger the safety of the train or require violation of rules.”
229. “They (enginemen) will take into consideration that the lives of passengers and trainmen, as well as the property of the company, are intrusted to their care, and it is fully expected and required that they will not only attend to all signals and all instructions, but also that they will, on all occasions, be vigilant and cautious themselves, not trusting alone to signals or rules for safety."
Rule 123. “In all cases of doubt and uncertainty, take the safe course and run no risks.”
Rule 100. “A train overtaking another train of the same or inferior class, unable to proceed from any cause, will run around it if practicable, and proceed on its own rights."
Rule 122. “Conductors and engineers will be held equally responsible for the violation of any of the rules governing the safety of their trains, and they must take every precaution for the protection of their trains, even if not provided in the rules."
We come now to the question of whether, upon their understanding of the facts and circumstances, Harrison and Brewer were excusable for what they did.
Harrison testifies that the flagman from 41 said to him, “that 41 is broke down and No. 29 is behind us, and they will have to hold you at Irving siding, and you are not to pass Irving siding until they
“I had it in my head that we were to go to Irving siding for 29 and 41; I understood from the brakeman that they were to stay there until we got there. I suppose both of us got confused about the order on this flagging business.
This flag was sent to me to notify me that they would lay there.".
Brewer testifies that the flagman from 41 said to him, “that 41 was broke down east of Farnham in the hole
and that 29 would shove them over to Irving siding and stay there until I arrived; Mr. Reed, the flagman, told me to go ahead, that there would be no danger, and that they would stay there until we got there,"
Mahony, the conductor of 41, and Reed the brakeman who carried the notice, agree that when Reed left 41, No. 29 had not arrived at all. It is, therefore, quite obvious, as Reed swears, that nothing whatever was said or was likely to have been said about 29 by him to Harrison and Brewer, which justified them in regarding his message as a notice from 29 that it would wait at the Irving siding. John B. Moore, baggage naster on the excursion train, called by Harrison to corroborate him as to what Reed said, failed to do so, but on the contrary fully sustained Reed as to the message given to Harrison and Brewer.
Their excuse, therefore, to the effect that the flagman notified them that 29 as well as 41 would wait at Irving siding is apparently without foundation,
There is nothing to show that Harrison and Brewer anticipated a collision; but the truth probably is, that knowing that 41 was broken down, they presumed that 29 was tied up behind it, and went on from Silver Creek, forgetting that under rule 100, No. 29 under its positive meet and pass order, had a right to get around 41 and to come to Silver Creek. For thus presuming and for thus forgetting the rights of 29, Harrison and Brewer were guilty of that degree of negligence which, by reason of their positions and responsibilities, is by law attached to such conduct.
In another aspect of the case those men were negligent.
When the excursion train reached Silver Creek the question of the duty of the conductor and engineer was at least a matter of doubt and uncertainty. They knew, upon their own statements, that if they proceeded it would be contrary to a positive order; that their information that 29 as well as 41 would wait at the siding was only the word of a flagman from 41; that under rule 100 train 29 had a right to pass 41 and come on; that the reverse curve and cut made it impossible to see far ahead. Under these circumstances is it not perfectly clear that, considering the many lives in their care, they ought in the language of rule 123 have “taken the safe course and run no risks.” Why did they not report to the train despatcher from Silver Creek their condition and get orders?
Why again did they not put out a flag ahead to protect them to the siding?
These precautions would naturally suggest themselves to a railroad man of experience under the circumstances, and for neglecting them Harrison and Brewer were guilty of laches and failed in the duty which the law requires of those who undertake to fulfil the requirements of euch positions.
It is not for this Board to determine the degree of culpability or the extent of punishment to be meted out for this misconduct. That will be the duty of the court and jury, looking at all the circumstances, as well those which militate against those men as those which mitigate their offense and deprive it of any malicious aspect. It is enough for this Board to say that railroad employees, high or low, should be held to strict accountability for the safety of the human lives under their charge, and that in them, failure to perform their duties becomes a crime, when lives are thereby lost. It is but proper to mention the fact that the evidence shows that Harrison and Brewer had been efficient men of long experience, and that neither had ever been responsible for any accident theretofore.
The brakeman, Reed, was not at the place with the flag which the rules prescribe in case of a broken down train, Had he so been there would have been no accident, because at Silver Creek the excursion
train would bave had nothing except its order to meet and pass 29 there, which it presumably would have followed.
This is explained, we think, so as to clear Reed and his conductor Mahony from any responsibility for the accident. As No. 41 was a considerable distance east of the west end of the Irving siding, and as there were heavy grades and curves between that point and Summit it became necessary to notify the excursion train of the condition of No. 41 before it reached the siding, in order that it might stop there and be prepared to take the siding, if necessary. In order, therefore, to reach the excursion train in time, Reed was sent up to meet it on No. 37 This train having a time order for Summit could not stop to let Reed off and consequently he went to Summit. He there delivered his notice to both Brewer and Harrison correctly, as we have seen. There does not, therefore, seem to be any reason to charge upon him any fault for the accident. That confusion arose in the minds of Brewer and Harrison from his message was their fault and not his. Their principal misconduct was, that having become confused they did not take the side of safety, and adopt proper precautions before proceeding beyond Silver Creek. The right of 29 to pass 41 and proceed to Silver Creek under its order and under rule 100 cannot be questioned, and hence there is no responsibility on that train for the accident.
It has been charged that the telescoping arose from the fact that the baggage car and the smoking car were of different heights. The Board has not been able to ascertain that there is any truth in this, cither from the officials of the road, under oath, or from such examination as could be made of the cars after the accident. From the manner in which the excursion engine mounted the engine of 29, it is probable that the forward end of the baggage car was depressed and the rear tilted up far enough to enable it to force itself over the platform of the smoking car.
The fact that the baggage car was empty and the smoking car loaded may also have had some effect. From the appearance of the forward platform of the smoking car it was obvious that the baggage car did not clear it when they came together, but that it forced itself over the platform of the smoking car, grinding and tearing away parts of it in its passage.
No censure can attach to the road or its officials for this occurrence, except the legal respousibility arising out of the negligent acts of the conductor and engineer of the excursion train. The orders given were clear and distinct and were ample to secure safety. The emergency which arose from the breaking down of No. 41 was provided for in the rules so as to have protected this train, had they been followed.
CONCLUSION. The cause of the collision and of the consequent loss of life and injury to persons was the negligence and violation of rules and orders on the part of William H. Harrison, conductor, and Lewis Brewer, engineer.
By the Board.
Boston and Albany. July 29, 1886.- At the highway crossing at Canaan, Lewis Silverman was injured. His horse becoming frightened as a freight train was passing, ran into the train and was killed, and Silverman's arm and leg were broken. Inquiry was made as to whether there were gates or flagman at crossing, and whether the view was unobstructed. The answer was that there were neither gates nor flagman, but an uninterrupted view.
September 22, 1886.- A special engine with the pay car stopped to pay off a gang of section men, at a point about one-fourth of a mile west of the State Line tunnel ; the payment had been completed and the order to go ahead had been given, when suddenly a local freight came around a sharp curve and ran into the pay car. All hands on the pay car jumped, with the exception of George H. Janes, assistant paymaster, who did not have time. The shock of the collision opened The throttle of engine of pay car, which ran away, until AssistantPaymaster Janes climbed over on to the engine and stopped it, just west of Canaan, after a run of between three and four miles. Janes was thrown down in the car and badly shaken up and head slightly cut. Inquiry developed the fact that the responsibility for this accident rested on the engineer of the freight train, who was running faster than schedule time. The schedule time was fifteen miles an hour, and the running time of the freight twenty miles an hour. The pay car was flagged, the men had been called in and the pay train in the act of starting. The distance which the pay car could be seen around curre was about 260 feet.
Bradford, Eldred and Cuba. May 13, 1886.- A quarter of a mile east of the depot at Little Genesee, it rail broke under the tender of the engine of an express train and the entire train was turned over on its side. Mrs. Jane Knapp was cut in the head and shoulder, and Miss Lou Mayes hurt in back and stomach — both passengers. In answer to inquiry, the president replied that the broken rail was a thirty-pound T rail, and had been on the track ever since the road was built; the ties and track were in good condition. The cause of the breakage was unascertainable.
Buffalo, New York and Philadelphia. October 7, 1885.— William Painter, a tramp, was reported killed, just south of the Erie railway crossing, at Olean, while attempting to cross the tracks in front of engine. In answer to the inquiry