Chesapeake Ry Co v. Nixon, 306

CourtUnited States Supreme Court
Citation271 U.S. 218,46 S.Ct. 495,70 L.Ed. 914
Docket NumberNo. 306,306
Decision Date24 May 1926

271 U.S. 218
46 S.Ct. 495
70 L.Ed. 914



No. 306.
Argued May 3, 1926.
Decided May 24, 1926.

Messrs. S. H. Williams, Randolph Harrison, and A. R. Long, all of Lynchburg, Va., for petitioner.

Messrs. Duncan Drysdale and Aubrey E. Strode, both of Lynchburg, Va., for respondent.

Mr. Justice HOLMES delivered the opinion of the Court.

This is a suit to recover damages for the death of the plaintiff's husband, the interstate, from the Railroad Company upon whose tracks the death occurred. The plaintiff (the respondent here) obtained a verdict and

Page 219

judgment in the trial Court and upon a writ of error the judgment was affirmed by the Supreme Court of Appeals of Virginia. 140 Va. 351, 125 S. E. 325. As the recovery was based upon the Employers' Liability Act of April 22, 1908, c. 149, § 1, 35 Stat. 65 (Comp. St. § 8657), the death having occurred in interstate commerce, a writ of certiorari was granted by this Court to review certain questions of law that arose in the case. 267 U. S. 590, 45 S. Ct. 508, 69 L. Ed. 802.

The deceased was an experienced section foreman upon the defendant's road. One of his duties was to go over and examine the track and to keep it in proper repair. When inspecting the track he used a three wheeled velocipede that fitted the rails and was propelled by the feet of the user. He had obtained from his immediate superior, the Supervisor of Track, leave to use the machine also in going to his work from his house, about a mile distant, over a part of the track that was in his charge. His work began at 7 in the morning and at half past 6 on the day of his death he started as usual. Five minutes later he was overtaken by a train and killed. For reasons that the jury found insufficient to excuse the omission the engineer and fireman of the train were not on the lookout, and the question raised is whether as toward the deceased the defendant owed a duty to keep a lookout, or whether on the other hand the deceased took the risk.

If the accident had happened an hour later when the deceased was inspecting the track, we think that there is no doubt that he would be held to have assumed the risk, and to have understood, as he instructed his men, that he must rely upon his own watchfulness and keep out of the way. The Railroad Company was entitled to expect that self-protection from its employees. Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758; Boldt v. Pennsylvania...

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