Baltimore Co v. Berry, 703

• Decision Date: 16 May 1932
• Docket Number: No. 703,703
• Citation: 76 L.Ed. 1098,286 U.S. 272,52 S.Ct. 510
• Parties: BALTIMORE & O. R. CO. v. BERRY
• Court: U.S. Supreme Court

286 U.S. 272

52 S.Ct. 510

76 L.Ed. 1098

BALTIMORE & O. R. CO.

v BERRY.

No. 703.

Argued April 26, 1932.

Decided May 16, 1932.

Messrs. Rudolph J. Kramer and Bruce A. Campbell, both of East St. Louis, Ill., for petitioner.

Mr. John S. Marsalek, of St. Louis, Mo., for respondent.

Mr. Justice STONE delivered the opinion of the Court.

In this case certiorari was granted, 285 U. S. 532, 52 S. Ct. 407, 76 L. Ed. —, to review a judgment of the Supreme Court of Missouri, 43 S.W.(2d) 782, sustaining a recovery by respondent in the circuit court of the city of St. Louis, under the Federal Employers' Liability Act (45 USCA §§ 51-59). Respondent, who was employed by petitioner in interstate commerce as a flagman or rear brakeman on a freight train proceeding over its line from Illinois to Indiana, was injured by a fall when attempting to alight in the nighttime from a caboose, which was standing on a bridge or trestle, so narrow as to afford no foothold to one getting off the train at that point. The State Supreme Court held that the trial court rightly overruled petitioner's demurrer to the evidence and correctly submitted to the jury the question of the petitioner's negligence, by its agents and servants, in ordering or permitting the plaintiff to alight from the caboose where it was dangerous to do so.

Respondent, an experienced railway brakeman, had been in the employ of the petitioner in that capacity for about nine years. For a number of years his regular run had been over petitioner's line where he was injured. The testimony was sharply conflicting, but the jury, if it believed the testimony most favorable to the respondent, could have found the following facts. The respondent was one of a crew of five men on a train consisting of engine, tender, forty-two cars and caboose, proceeding easterly in the direction of Xenia, Ill. He was serving as rear brakeman and rode in the caboose with the conductor. The train was under orders, known to the crew, including the respondent, to enter a passing track at Xenia and wait there until it was passed by another train going west. About three miles west of Xenia, respondent and the conductor observed a blazing hot box on one of the cars; the train was stopped on the main line, and both went forward to examine the hot box. The conductor then sent respondent to the engine to get a bucket of water to put out the fire, instructing him to say to the engineer that at the next stop, at Xenia, they would finish any necessary work on the box. Respondent communicated this message to the engineer; the fire was extinguished and the train proceeded on its way until it halted at Xenia. The stop there was made for the purpose of opening the switch, so that the train could enter the passing track, with the engine from one and one-half to three car lengths from the switch, and the caboose, at the rear end of the train, standing on the trestle. The respondent testified that he and the conductor were in the cupola of the caboose...