In Error to the Circuit Court of the United States for the Southern Division of the Southern District of California.

Action by Mark B. Hamble against the Atchison, Topeka & Santa Fé Railway Company. Judgment for .plaintiff, and defendant brings error.

This was an action brought by the defendant in error, hereafter designated as the “plaintiff,” to recover damages from the plaintiff in error, hereafter designated as “defendant,” for personal injuries resulting from the defendant's alleged negligence.

That part of the Southern Pacific line of railway in Southern California between Mojave and Bakersfield, a distance of about 69 miles, although a single track, is occupied jointly by the Southern Pacific Company and the defendant, the Atchison, Topeka & Sante Fé Company; the latter having a license to run its trains over this section of the Southern Pacific track. Intermediate between Mojave and Bakersfield are the stations of Tehachapi and Bealville. The track from Tehachapi near the summit of the Tehachapi Mountains to Bealville is downgrade; the average descent being about 120 feet to the mile. The line of road between these two points passes over 'a number of curves and throng]; a series of 14 tunnels. To guard against collisions, the road is divided into sections of varying lengths, called “blocks,” and these blocks are equipped with an effective system of automatic block signals. These signals are described by the attorney for the defendant as follows: “At the initial end, or entrance, of each block, and at the right side-r-the engineer’s side — is a block signal consisting of a post having near its top an arm, or semaphore, pivoted near one of its ends on the post, so that it can be swung freely through an arc of 90 degrees in a plane at right angles with the 'block. The long end of the arm is painted red on the side visible to a train approaching the block to enter. The short end of the arm is provided with a red, a green, and sometimes a yellow round disc of glass, arranged in the are of a circle, so that, as the arm is moved to given angles with the post, these colored glasses will severally stand opposite a light fixed near the head of the post, and will show a red, green, or yellow light to the train approaching the block entrance. Adjacent to the post is an electromagnetic mechanism which swings the semaphore to the desired angle, and is in an electric current formed by the rails in the block and the wheels of a locomotive or car in contact with both rails. When there is no train on the block, the semaphore is at an angle of 45 degrees with the post, and the green light shows. When the forward wheels of the pony truck of a locomotive pass onto the ends of the rails at the block entrance, the semaphore swings up and stands at right angles with the post, its long arm extending away from the track, that is to the right as the train is going and the red glass in the short arm confronts the lamp. The semaphore remains in this position until the last two wheels of the last car in the train pass off of the end of the rails at the block terminus, when it drops again to an angle of about 45 degrees and shows the green light. By day the red arm at right angles, by night the red light, is a signal to enter the block, because it is clear.”

The section of road with which we are immediately concerned in this case is a single block having a length of about a mile and a half extending above Bealville. The track in this block passes through four tunnels and over about the same number of curves. The lower tunnel is numbered 3, and is located above Bealville. The next above is numbered 4, the next above that is numbered 5, and the upper tunnel is numbered O. At the upper end of this block at a point 1,400 feet above the upper end of tunnel No. 6 stands the upper block signal for this block, which gives information to a train coming down the mountain of the condition of the track throughout the entire block below. The lower block signal is below tunnel No. 3 in Bealville. There is also a cautionary signal about 200 or 250 feet above tunnel No. 4. This cautionary signal gives information to a train -coming through the block as to the condition of the trade approaching the station at Bealville, about 1,500 feet below the lower end of tunnel No. 4.

The movement of trains over this section is under the direction of the division superintendent of the Southern Pacific Company at Bakersfield, who gives his orders through the train dispatcher at that place. Practically the orders of 'the division superintendent are in fact issued by the train dispatcher.

The plaintiff on February 2, 1903, was employed as a conductor on an extra freight train No. 2,602, belonging to the Southern Pacific Company, consisting of 35 empty freight cars with an engine in front and a caboose, or way ear. at the rear. This train left Tehachapi about 2 o’clock on the morning of February 2, 1903, and arrived at a point near the switch at Bealville about 6:05 a. m. The train was stopped and held at this point: because the track was blocked by another train in front of Bealville. The train had passed through tunnel No. 5 and partly through tunnel No. 4. The rear end of the train, including the caboose, stood in the westerly end of tunnel No. 4. This tunnel is 257 feet long. The train stood about 90 feet in the westerly end of the tunnel, leaving about 167 feet of the easterly end of the tunnel clear. The distance between tunnels 5 and 4 is about 2,564 feet. The track between those two points is plainly visible from the westerly end of tunnel No. 5, except at a point from 100 to 150 feet from the westerly end of tunnel No. 5, where the track passes through a cut or curve for a distance of about 200 or-300 feet. The evidence that the block signal system was in full operation on that morning is uncontradicted. When plaintiff’s train came to a standstill in and below tunnel No. 4, the rear brakeman on that train went back up_ the track between tunnel No. 4 and tunnel No. 5 and struck a lighted fusee oil a tie and placed two torpedoes on the rail to protect the train from collision from an .overtaking train. This brakeman testified that when he saw the fusee was burning out he went back to the caboose and got another fusee and two additiona! torpedoes. Returning up the track, he placed Ihe second fusee, and the two additional torpedoes at intervals along ihe track. He then heard a whistle which he thought came from the engine of his train calling Mm in. Upon going back he found liis train still standing in the tunnel. Returning up the track he saw a headlight coining out of tunnel No. 5. This headlight was the headlight of the following -¡rain, consisting of throe engines and caboose, which had left Teliachapi shortly after plaintiff’s train. This train, when seen by the brakeman, had passed the block signal above tunnel No. 6 showing red, and warning this train that there was another train in the block. It passed down the track between tunnels Nos. 5 and 4, exploding the torpedoes and passing over the burning fusee set by the brakeman. It passed the cautionary signal above tunnel No. 4 showing yellow, warning the train to come to a stop, and proceeding onward entered tunnel No. 4, where it smashed into the rear of plaintiffs train, driving that train with 10 brakes set a car length ahead, smashing a caboose, and driving an oil car up into the roof of the tunnel. The plaintiff was in the caboose at the time of Ihe collision and was carried forward ill the wreckage and rendered unconscious. When he regained consciousness, he found himself on the top of a door on a level with the mouth of the tunnel and in the midst of wreckage. He crawled out on an oil car and from there to the ground. Ilis left leg was so badly crushed that it became necessary to amputate it below the knee. From that and other injuries received at the time he was in the hospital for a greater part of two years.

At the summit that morning two engines and a caboose belonging to the defendant were coupled together as a train. The engines were numbered 781 and 781: No. 781 being in the lead. The train dispatcher issued an order that these two engines and caboose should go down the road as a train to Kern Junction near Bakersfield as extra No. 781. Under the rules of practice of the road relating to the movement of trains, the leading engine holds the orders of the train dispatcher, and the train, when an extra, takes its number from the number of the engine. After this train had been made up in the order stated, with a conductor in ihe employ of the defendant in charge, the train dispatcher issued a supplemental order, which was delivered to the conductor and to the engineer in charge of engine No. 78.1, to couple to engine No. 2245, belonging to the Southern Pacific Company, and'to take it to Kern Junction. To avoid the delay in switching, this Inst engine was placed at the head of the train. The number of the train was not, however, changed, lmt retained 51s number as extra No. 781. This train as thus made up had an engineer in the lead in the employ of the Southern Pacific Company, two engineers in the second and third engines, respectively, and a conductor and brakeman in the caboose in the employ of the defendant. Precisely when this train left, the station at Teliachapi near the summit is not clear; but, as there is no controversy on that point, it is suflicient to say that it followed plaintiffs train down the mountain, and it will ho assumed that it left Teliachapi after a proper interval. It was this following train that overtook and smashed into plaintiff’s train in tunnel No. 4 near Bealville, where plaintiff received his injuries.

Thereafter plaintiff brought this action, alleging that by reason of the negligence of the defendant, its servants, agents, and employes, the engineers of said two locomotive engines and conductor in charge of said train and said caboose, said train was caused to come into violent collision with the caboose at the rear end of the train of wliic-Ii plaintiff had charge and in which he was stationed, whereby he was injured.

The defendant in its answer alleged that in the year 1809 the Southern Pacific Company had granted to the defendant a license or privilege authorizing the defendant to run and operate engines, cars, and trains over said line of railway between Mojave and Bakersfield upon condition that the operation and movement of all such engines, cars, and trains to be operated over said line of railway by the defendant should be subject to the immediate direction, government, and superintendence of said Southern Pacific Company through its agents, and that since the year 1899 defendant had been engaged in running and operating certain of its cars, engines, and trains over said line of railway in pursuance of said license, xiriviiege, and arrangement, and not otherwise. Defendant admitted that the train referred to in the complaint as having 'collided with the train in charge of the plaintiff consisted of three steam engines coupled together and drawing a caboose, or way car, and admitted that the whole of said train excepting the forward locomotive was owned by the defendant; alleged that the forward locomotive was owned and in the possession of the Southern Pacific Company, and was at the time of the collision controlled, operated, and directed solely by .the last-named company and its agents and servants; and that the train while running over said line of railway upon said occasion was under the sole direction, control, and government of the Southern Pacific Company and its agents; and denied that the collision or injuries suffered on that occasion were in any manner caused by any negligence on the part of the defendant or any or either of its servants, agents, employes, engineers, or conductors; charged that the plaintiff was guilty of. carelessness, negligence, and a failure to exercise ordinary care in respect to properly guarding and protecting the train in his charge against the danger of collision with other cars, engines, and trains being operated over said line of railway at that time, and that such negligence, carelessness, and a failure to exercise ordinary care on the part of the plaintiff was the proximate cause of such collision and each and ail of the injuries sustained by the plaintiff on such occasion.

Upon a trial of the case before a jury, at the conclusion of the evidence for the plaintiff the defendant moved for a nonsuit on the grounds: First, that the train of engines and caboose and everybody on it from the time the train left the summit until the collision was under the control and direction of the Southern Pacific Company and not of the defendant; and, second, on the ground that no negligence had been shown on the part of the defendant. The court granted the motion on the first ground and entered a judgment in favor of the defendant. The case was brought to this court by the' plaintiff upon a writ of error, and the judgment reversed and remanded for a new trial. Ham'ble v. Atchison, T. & S. F. Ry. Co., 164 Fed. 410, 02 C. C. A. 147, 22 U. R. A. (1ST. S.) 323. • In the opinion of this court it was held that the defendant running a train over the track of the Southern Pacific Company under a contract that they,would obey the orders of the train dispatcher of the Southern Pacific Company did not relieve the defendant from liability for injuries to the plaintiff caused by the negligence of its employes operating the train and which was in no way attributable to an order of the train dispatcher. The court further held that the liability of the defendant was not affected by the fact that one of the engines attached to the train belonged to the Southern Pacific Company; that, notwithstanding the presence of this engine, the train remained in the control of the conductor, an employe of the defendant, and it was by reason of his negligence the collision occurred. Upon the second trial the evidence on the part of the plaintiff was substantially the same as at the first trial.

On the part of the defendant, in .addition to other evidence, a stipulation was introduced in evidence that certain witnesses, if present, would testify that: '

Under the agreement by which this track was jointly used by the Southern Pacific and defendant, the Southern Pacific Company had sole control of the movement of trains on the said track; that the employes of the defendant were required to take an examination for fitness before going upon the same by an officer of the Southern Pacific Company, and that the Southern Pacific Company reserved in said agreement the right at any time to bar either temporarily or permanently any employs of the defendant from working at all upon or over said track.

It was agreed that the word “movement,” as used in the first part of this stipulation, meant “movement of trains under the orders of the train dispatcher.”

The court instructed the jury, among other things, that the conductor and other employes of the defendant on the train which collided with the Southern Pacific train of which plaintiff was conductor were defendant's servants, and that their négligence, if they were negligent, was the negligence of the defendant. In connection with this instruction, the court read that part of the opinion of this court in the former case upon that question. To this and to other portions of the instructions given by the court exceptions were taken by the defendant. It also excepted to the refusal of the court to give certain requested instructions and to the admission and rejection of certain testimony. The jury returned a verdict for the plaintiff. The case is here upon a writ of error sued out by the defendant.