Kinzell v. Chicago St Ry Co, No. 485

CourtUnited States Supreme Court
Writing for the CourtCLARKE
Citation39 S.Ct. 412,250 U.S. 130,63 L.Ed. 893
PartiesKINZELL v. CHICAGO, M. & ST. P. RY. CO
Docket NumberNo. 485
Decision Date19 May 1919

250 U.S. 130
39 S.Ct. 412
63 L.Ed. 893
KINZELL

v.

CHICAGO, M. & ST. P. RY. CO.

No. 485.
Argued April 15, 1919.
Decided May 19, 1919.

Messrs. James A. Wayne, of Wallace, Idaho, and John P. Gray, of Coeur D'Alene, Idaho, for petitioner.

Mr. George W. Korte, of Seattle, Wash., for respondent.

Mr. Justice CLARKE delivered the opinion of the Court.

This case comes into this court on writ of certiorari to the Supreme Court of the state of Idaho and all of the facts essential to its decision are admitted or are not controverted, and are as follows:

When the accident complained of in the case occurred, the railway company, respondent, was engaged in filling with earth a wooden trestle-work bridge, 1,200 feet in length, by which its track was carried across a dry gulch

Page 131

or coulee, the purpose being to continue the track upon the solid embankment when it should be completed.

It was admitted that the railway company was engaged in interstate commerce, and that during the progress of the filling the bridge was used for interstate trains. Pursuant to an order of court, the petitioner, an employe of the respondent, elected to rely on the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665) for his right to recover.

Several weeks prior to the accident to the petitioner Kinzell, the work of filling the bridge had progressed to such a stage that when earth was dumped from cars it would be heaped up beside the track higher than the tops of the ties and rails so that it became necessary to spread it by pushing it away from the track toward the edge of the fill, in order to prevent its falling back upon the rails and to widen the embankment. To thus spread the earth an appliance called in the record a 'dozer,' and sometimes a 'bull dozer,' was used. It consisted substantially of a flat car body with adjustable wings or scrapers, so designed as to remove any earth which might fall upon the rails and also to press or push that heaped up at the side of the track out to the edge of the embankment.

When a trainload of earth would arrive at the bridge the practice was to couple the 'dozer' to the forward end of the cars and then they and the 'dozer' would be pushed to the place at which it was desired to unload the earth. After the cars were dumped the pulling of the 'dozer' back with them would scrape the earth from the tops of the rails and would push it away from the track, thus contributing to keep the track clear and to widen the embankment.

For several weeks prior to the accident complained of, Kinzell, with an assistant, had been in charge of this 'dozer,' using it as described, and in addition to this they were required to remove, with shovels, earth or stones which fell upon the track, so, the superintendent of the

Page 132

railway testified, as to make it safe for the operation of trains. The rails and ties had not been transferred to the embankment, but were still sustained by the bridge substructure when the accident occurred.

Kinzell was injured by what he claimed was negligence of the company in the manner of coupling a train of cars to the 'dozer' as an immediate preliminary to such an unloading and cleaning movement as we have described.

Much is made in argument of the contention that the fill in...

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65 practice notes
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...v. Delaware, Lackawanna & Western R. R. Co., 229 U.S. 146, 57 L.Ed. 1125. See also: Kinzell v. Chicago, Milwaukee & St. Paul R. R. Co., 250 U.S. 130, 63 L.Ed. 893; Southern Pacific Co. v. Industrial Accident Commission, 251 U.S. 259, 64 L.Ed. 258; Erie R. R. Co. v. Collins, 253 U.S. 77, 64 ......
  • Lloyd v. Alton Railroad Co., No. 38613.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ...473, 34 Sup. Ct. 646; So. Ry. Co. v. Puckett, 244 U.S. 571, 37 Sup. Ct. 703; K.C. So. R. Co. v. Martin, 262 Fed. 241; Kinzell v. Ry. Co., 250 U.S. 130, 39 Sup. Ct. 412; O'Brien v. U.S., etc., 185 N.Y.S. 447, affirmed 132 N.E. 867, 231 N.Y. 511; Kepner v. Cleveland, etc., R. Co., 15 S.W. (2d......
  • Lorenzetti v. American Trust Co., No. 21826
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 19, 1942
    ...516, 65 L.Ed. 955; Philadelphia B. & W. R. v. Smith, 250 U.S. 101, 103, 39 S.Ct. 396, 63 L.Ed. 869; Kinzell v. Chicago M. & St. P. R. Co., 250 U.S. 130, 133, 39 S. Ct. 412, 63 L.Ed. 893; Shanks v. Delaware, Lackawanna & Western Railroad Company, 239 U.S. 556, 558, 36 S.Ct. 188, 60 L.Ed. 436......
  • L. & N.R. Co. v. Jolly's Admrx.
    • United States
    • United States State Supreme Court (Kentucky)
    • January 14, 1930
    ...or to secure its safety, its performance can not be a matter of indifference to that traffic. Kinzell v. Chicago, M. & St. P.R. Co., 250 U.S. 130, 39 S. Ct. 412, 63 L. Ed. 893; Morrison v. Chicago, M. & St. P.R. Co., 103 Wash. 650, 175 P. 325, certiorari denied 249 U.S. 611, 39 S. Ct. 386, ......
  • Request a trial to view additional results
65 cases
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...v. Delaware, Lackawanna & Western R. R. Co., 229 U.S. 146, 57 L.Ed. 1125. See also: Kinzell v. Chicago, Milwaukee & St. Paul R. R. Co., 250 U.S. 130, 63 L.Ed. 893; Southern Pacific Co. v. Industrial Accident Commission, 251 U.S. 259, 64 L.Ed. 258; Erie R. R. Co. v. Collins, 253 U.S. 77, 64 ......
  • Lloyd v. Alton Railroad Co., No. 38613.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ...473, 34 Sup. Ct. 646; So. Ry. Co. v. Puckett, 244 U.S. 571, 37 Sup. Ct. 703; K.C. So. R. Co. v. Martin, 262 Fed. 241; Kinzell v. Ry. Co., 250 U.S. 130, 39 Sup. Ct. 412; O'Brien v. U.S., etc., 185 N.Y.S. 447, affirmed 132 N.E. 867, 231 N.Y. 511; Kepner v. Cleveland, etc., R. Co., 15 S.W. (2d......
  • Lorenzetti v. American Trust Co., No. 21826
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • May 19, 1942
    ...516, 65 L.Ed. 955; Philadelphia B. & W. R. v. Smith, 250 U.S. 101, 103, 39 S.Ct. 396, 63 L.Ed. 869; Kinzell v. Chicago M. & St. P. R. Co., 250 U.S. 130, 133, 39 S. Ct. 412, 63 L.Ed. 893; Shanks v. Delaware, Lackawanna & Western Railroad Company, 239 U.S. 556, 558, 36 S.Ct. 188, 60 L.Ed. 436......
  • L. & N.R. Co. v. Jolly's Admrx.
    • United States
    • United States State Supreme Court (Kentucky)
    • January 14, 1930
    ...or to secure its safety, its performance can not be a matter of indifference to that traffic. Kinzell v. Chicago, M. & St. P.R. Co., 250 U.S. 130, 39 S. Ct. 412, 63 L. Ed. 893; Morrison v. Chicago, M. & St. P.R. Co., 103 Wash. 650, 175 P. 325, certiorari denied 249 U.S. 611, 39 S. Ct. 386, ......
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