Linstead v. Chesapeake Ry Co

Decision Date20 February 1928
Docket NumberNo. 171,171
CourtU.S. Supreme Court

Mr. John W. Cowell, of Cincinnati, Ohio, for petitioner.

Mr. Frank M. Tracy, of Cincinnati, Ohio, for respondent.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This was an action under the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665) against the Chesapeake & Ohio Railway Com- pany, of Virginia, by Katherine Linstead, as executrix, to recover damages for the death of her husband, who was a conductor in the employ of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, known as the 'Big Four,' but who was working upon a freight train running upon the Chesapeake & Ohio Railway Company's tracks between Stevens, Ky., and Riverside, Ohio, near Cincinnati. The question in the case is, for whom he was working when he was killed, whether for the Chesapeake & Ohio Railway Company, the respondent, or the Big Four Company. He was one of a train crew of the Big Four Company, composed of an engineer, a conductor, and two brakemen. The Chesapeake & Ohio Company comes from the East to Cincinnati along the southern bank of the Ohio river, and crosses that river at Cincinnati. The Big Four Company has no line in Kentucky, but receives traffic and business from the Chesapeake & Ohio Company at Cincinnati, or near thereto on the north side of the river, delivering the traffic to the Northwest. The terminal yard, so called, of the Chesapeake & Ohio reaches from a station called Stevens, in Ky., for some 12 or 13 miles to Riverside, near Cincinnati, on the Ohio side, and in this 12 or 13 miles the Chesapeake & Ohio line passes five stations, called Brent, Altamont, Newport Waterworks, Brick House, and Cold Haven, and over an Ohio river bridge. It is convenient for both railroads in the interchange of traffic to make an arrangement by which the Big Four lends to the Chesapeake & Ohio a locomotive and caboose and a train crew to take the freight trains that come into Stevens, Ky., from the East, to the Big Four Company at Riverside, Ohio, over the rails of the Chesapeake & Ohio. The Chesapeake & Ohio does not pay the Big Four Company any rental for the lending of its locomotive and caboose and crew in this matter, but it pays the consideration by a reciprocal service rendered to the Big Four by a train crew and locomotive and caboose of the Chesapeake & Ohio. When the Big Four train crew and locomotive and caboose run on the track of the Chesapeake & Ohio between Stevens and Riverside, near Cincinnati, they are furnished with time-tables and rule books of the Chesapeake & Ohio Railway. They are under the supervision and control, so far as their work is concerned, of the trainmaster of the Chesapeake & Ohio Company, whose jurisdiction reaches from Stevens to Riverside in the operation of the Chesapeake & Ohio road. The Big Four crew is not subject to discharge by any officer of the Chesapeake & Ohio road. In the operation of the train over the Chesapeake & Ohio line, they obey the signals of the switch tenders of that company and comply with the rules for operation on its line. The Big Four crew attends to nothing while on the Chesapeake & Ohio line but the train which it is sent over to Stevens to bring to the junction point at Riverside on the Ohio side. All of the members of the train crew, including the deceased, were paid by the Big Four Company.

On the morning of the accident, Linstead, the deceased, as conductor, had brought over his crew with the Big Four locomotive and caboose to Stevens, had attached the locomotive and caboose to a train of cars containing 22 loads and 18 empties, and was proceeding to take them to Cincinnati and the junction with the Big Four road. The train had proceeded only a few miles on the Chesapeake & Ohio track, when it was overtaken and run into by a commutation passenger train of the Chesapeake & Ohio Company, running from Stevens to Cincinnati and back again. It was a train operated by the Chesapeake & Ohio Railway for the convenience of early morning passengers, and was not on the timetable. It was called the 'Chippy.' Linstead was in the caboose at the rear of his freight train. The caboose was shattered to pieces and Linstead was killed.

The trial was had in the District Court in Kentucky, held at Covington, and in the charge the court used this language, which was duly excepted to:

'First, under the evidence here, you are authorized to believe-you couldn't find otherwise-that the Chesapeake & Ohio Railway is a common carrier engaged in interstate commerce, carrying freight and passengers between the states.

'Second, under the evidence you would be authorized to find-you couldn't find otherwise-that the defendant, her husband, on the occasion of the injury, was in the employ of the Chesapeake & Ohio Railway Company and engaged in interstate commerce work.'

The result of the trial was a verdict for $16,500, upon which judgment was entered.

By writ of error, the case was carried to the Circuit Court of Appeals. That court, by per curiam, reversed the judgment and remanded the case for further proceedings. The...

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