109 U.S. 478 (1883), Randall v. Baltimore & O.R. Co.

Citation:109 U.S. 478, 3 S.Ct. 322, 27 L.Ed. 1003
Party Name:RANDALL v. BALTIMORE & O. R. Co.
Case Date:December 10, 1883
Court:United States Supreme Court
 
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Page 478

109 U.S. 478 (1883)

3 S.Ct. 322, 27 L.Ed. 1003

RANDALL

v.

BALTIMORE & O. R. Co.

United States Supreme Court.

December 10, 1883

In Error to the Circuit Court of the United States for the District of West Virginia.

COUNSEL

[3 S.Ct. 323] B. B. Dovener, for plaintiff in error.

John K. Cowen and C. Boggess, for defendant in error.

OPINION

GRAY, J.

Page 479

This is an action against a railroad corporation, by a brakeman in its employ, for personal injuries received, while working a switch, by being struck by one of its locomotive engines. The declaration, in seven different counts, alleged as grounds of action that the defendant negligently constructed and kept its tracks and switches in a defective and dangerous condition; that the defendant, by one of its agents and servants, who was at the time unskillful, negligent, and unfit to perform the business and employment that he was engaged by the defendant to perform, and who was engaged in a service for the defendant other and different from the service in which the plaintiff was engaged, and whose negligence, unskillfulness, and unfitness were known to the defendant, negligently propelled one of its locomotive engines against and over the plaintiff; that this was done without sounding any whistle or ringing any bell, as required by the laws of the state of West Virginia; and that the defendant neglected proper precautions in the selection and employment of its agents and servants.

Page 480

A statute of West Virginia provides that 'a bell or steam-whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or highway is reached,' under a penalty of not exceeding $100 for each neglect; and that 'the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect.' St. W.Va. 1873, c. 88, § 31.

As we understand the evidence introduced at the trial, it conclusively proved the following facts: The injury occurred at night, at a place where, as the plaintiff himself testified, 'there was one network of tracks,' in the defendant's railroad yard, near the junction of a branch road with the main road, and about 10 rods from a highway crossing. The plaintiff had previously been employed on another part of the road. On the night in question, in the performance of his duty as a brakeman on a freight train, he unlocked a switch which enabled his train to pass from one track to another; and he was stooping down, with his lantern on the ground beside him, to unlock the ball of a second switch to let the engine of his train pass to a third track, when he was struck and injured by the tender of another freight engine, in no way connected with his train, backing down on the second track. The tender projected 10 inches beyond the rail. The distance between the adjacent rails of the second and third tracks was about six feet. The second switch was a ground switch of a kind in common use, the lock of which was in the center of the space between the two tracks; and the hendle of which was about two feet long, and when lying flat...

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