Kanawha Michigan Railway Company v. Kerse

• Citation: 36 S.Ct. 174,239 U.S. 576,60 L.Ed. 448
• Decision Date: 10 January 1916
• Docket Number: No. 129,129
• Parties: KANAWHA & MICHIGAN RAILWAY COMPANY, Plff. in Err., v. T. L. KERSE, Administrator of the Estate of Thomas P. Barry, Deceased
• Court: U.S. Supreme Court

239 U.S. 576

36 S.Ct. 174

60 L.Ed. 448

KANAWHA & MICHIGAN RAILWAY COMPANY, Plff. in Err.,

v T. L. KERSE, Administrator of the Estate of Thomas P. Barry, Deceased.

No. 129.

Argued December 10, 1915.

Decided January 10, 1916.

Messrs. Leroy Allebach and W. N. King for plaintiff in error.

[Argument of Counsel from page 577 intentionally omitted] Messrs. George A. Berry and R. F. Downing for defendant in error.

Mr. Justice Pitney delivered the opinion of the court:

This was an action under the Federal employers' liability act to recover damages because of the death of one Barry, a brakeman in the Railway Company's yard at Charleston, West Virginia, on April 23, 1911. It was pleaded and was proved without dispute that he received injuries resulting in his death while employed in interstate commerce by the Railway Company, admittedly a common carrier. There was a verdict in favor of the administrator, and the supreme court of appeals of West Virginia refused to allow a writ of error to review the resulting judgment; hence our writ was directed to the trial court.

The principal argument of plaintiff in error is addressed to the refusal of the court to direct a verdict in favor of defendant upon the ground that there was no proof of negligence on the part of the Railway Company, and that there was clear and undisputed proof that Barry assumed the risk of such an injury as that which resulted in his death.

It appears that Barry was an experienced yard brakeman, and was employed in that capacity by the Railway Company in its Charleston yard. Among the industries served by the yard was that of the Kanawha Brewing Company, which had a private switch running through its premises and connecting with defendant's main line. Some time prior to April 23, 1911, carpenters in the employ of the Brewing Company had placed one or two pieces of timber, about 2 inches thick and 3 to 6 inches wide, in a horizontal position across the switch track, and at a height between 3 feet and 4 1/2 feet above the top of an ordinary box car. The timber was secured by nails to two buildings on opposite sides of the track. There was a conflict of testimony as to the length of time that the timber had been in position prior to the accident, witnesses fixing it at periods varying from two or three days to a month. It was necessary for members of defendant's yard crew to pass in and out of the switch and under the obstruction frequently. The timber was in plain view, but because of a sharp curve in the switch track could be seen by those upon the top of a car for only a short distance when approaching it. On the 23d of April a switching crew, of which Barry was that day a member, went upon the switch to haul out upon the main line a car destined for interstate commerce. The engine, in charge of one Leonard, was backed in upon the switch, and Barry coupled up the car, which was an ordinary box car, and then climbed to the top of it. Leonard started to pull out of the switch, and as the train proceeded Barry, who was standing near the rear end of the car, and not looking forward, but sidewise (presumably watching Wintz, the conductor, who was standing upon the ground, in charge of the train), came in contact with the timber and was thrown to the ground, sustaining a facture of the skull, from which he soon died.

The action of the Railway Company, through its employees, in conducting its switching operations upon a switch obstructed, as this one was, in such manner as to endanger the lives of brakemen upon its cars, speaks so clearly of negligence that no time need be spent upon it. The evidence that the timber had been in the position described for a considerable period of time was presumptive evidence of notice to the company; besides which, the switch engineer and conductor both testified to actual knowledge on their part, prior to the time of the accident to Barry. Under the employers' liability act (35 Stat. at L. 65, chap. 149, § 1, Comp. Stat. 1913, § 8657) the action lies for 'injury or death...