Chesapeake & O. Ry. Co. v. Cowley

• Decision Date: 07 November 1908
• Docket Number: 802.
• Citation: Chesapeake & O. Ry. Co. v. Cowley, 166 F. 283 (4th Cir. 1908)
• Parties: CHESAPEAKE & O. RY. CO. v. COWLEY.
• Court: U.S. Court of Appeals — Fourth Circuit

166 F. 283

CHESAPEAKE & O. RY. CO. v. COWLEY.

No. 802.

United States Court of Appeals, Fourth Circuit.

November 7, 1908

Herbert Fitzpatrick and F. B. Enslow(Simms, Enslow, Fitzpatrick &amp Baker, on the brief), for plaintiff error.

E. L Nuckolls(C. W. Dillon, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and BOYD and DAYTON, District Judges.

PER CURIAM.

The facts in this case vary in no material particular from those involved in the case of Choctaw, O. & G.R. Co. v McDade,112 F. 888, 50 C.C.A. 591, which subsequently was affirmed by the Supreme Court, after elaborate argument and careful consideration, without dissenting voice, 191 U.S 64, 24 Sup.Ct. 24, 48 L.Ed. 96.

The legal principles involved have also been substantially considered by this court in the recent case of Norfolk &amp W. Ry. Co. v. Beckett,163 F. 479(advance sheets), where the facts also were very similar.In the McDade Case it was held that the maintenance of a water spout attached to a water tank constructed so near to the track as to allow such pipe to hang so low over passing cars as not to clear a brakeman on the top thereof was negligence per se, and that evidence showing that the brakeman, after being on top of a car passing such tank, was found lying by the track injured, was sufficient to justify a jury in...