Benjamin N. Cardozo

“ We do not need to inquire whether a different conclusion would follow if the conductor in the caboose had discovered that the engineer had gone upon the main track through a misunderstanding of a later order, and, discovering this, had failed after a substantial interval of time to give warning of a peril that he could have easily averted. Nothing of the kind appears. There is an absence of the essential factors that wake into life the doctrine of the last clear chance. In the first place, the conductor did not know any more than Simpson did that an order had been violated. ”

“ In the brief for the respondent nice calculations are submitted in an attempt to prove that, if the conductor had applied the brakes at once, his train could have been stopped at a point that would have separated it by a space of approximately half a mile from train No. 18 rushing on from the south, and that, if all this had happened, the engineer of No. 18 might have noticed the stationary train in time to stop his own and thus prevent collision. Calculations so nice are unavailing to prove anything except the unity of the whole transaction. ”

“ While the orders were in the conductor's hands, and he was reading them again, the collision occurred.
The facts so summarized are insufficient to relieve the engineer from the sole responsibility for the casualty that resulted in his death. What was said by this Court in Davis v. Kennedy, 266 U.S. 147, 45 S.C.t. 33, 69 L. Ed. 212, might have been written of this case: 'It was the personal duty of the engineer positively to ascertain whether the other train had passed. His duty was primary as he had physical countrol of No. ”