Frese v. Chicago Co

Decision Date15 October 1923
Docket NumberNo. 27,27
Citation44 S.Ct. 1,68 L.Ed. 131,263 U.S. 1
PartiesFRESE v. CHICAGO, B. & Q. R. CO
CourtU.S. Supreme Court

Mr. John G. Parkinson, of St. Joseph, Mo., for petitioner.

Mr. M. G. Roberts, of St. Louis, Mo., for respondent.

Mr. Justice HOLMES delivered the opinion of the Court.

This is an action in Missouri under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) for the death of the plaintiff's (petitioner's) intestate caused by a collision in Illinois between engines of the defendant and the Wabash Railroad Company at a grade crossing. The deceased, Frese, was the engineer in charge of the defendant's engine. A statute of Illinois required that——

'All trains running on any railroad in this state, when approaching a crossing with another railroad upon the same level, or when approaching a swing or drawbridge, in use as such, shall be brought to a full stop before reaching the same, and within eight hundred (800) feet therefrom, and the engineer or other person in charge of the engine attached to the train shall positively ascertain that the way is clear and that the train can safely resume its course before proceeding to pass the bridge or crossing.' Hurd's Rev. St. Ill. 1921, c. 114, § 75.

See Southern Ry. Co. v. King, 217 U. S. 524, 30 Sup. Ct. 594, 54 L. Ed. 868.

Frese brought his train to a stop somewhat over two hundred feet from the crossing and the Wabash train stopped at about three hundred feet from it. But the view of the Wabash track from the Burlington was obstructed intermittently until the Wabash track was reached. The two trains did not discover each other, but started on again and collided, killing Frese. The Supreme Court of Missouri held that as the engine was under the control of the engineer who was killed, the statute of Illinois imposed upon him the imperative duty positively to ascertain that the way was clear before entering upon the crossing; that if he had done so he would not have been killed, and that the plaintiff could not recover. Judgment was ordered for the defendant. 290 Mo. 501, 235 S. W. 97.

The plaintiff contends that there was evidence of contributory negligence on the part of the fireman, Savage, and therefore that even if Frese was negligent that would not be a bar to this action under the Employers' Liability Act. But the only evidence as to the fireman came from a man who was standing on the ground as the engine passed him. He says that it looked to him that the fireman then was...

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