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Ches. Ohio Ry. v. Nixon

U.S.
May 24, 1926
271 U.S. 218 (1926)

Summary

In Chesapeake Ohio R. Co. v. Nixon, 271 U.S. 218, the facts were that a section foreman whose employment obliged him to go over and examine the track was on a tour of inspection. For that purpose he used a velocipede fitted to the rails.

Summary of this case from C. O.R. Co. v. Mihas

Opinion

CERTIORARI TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.

No. 306.

Argued May 3, 1926. Decided May 24, 1926.

A railroad section foreman, one of whose duties was to go over and inspect the track and keep it in repair, assumed the risk of being run down by a train while going to his work over a part of the track that was in his charge, riding (by permission of a superior) the railway velocipede which he used in track inspections. P. 219. 140 Va. 351, reversed.

CERTIORARI to a judgment of the Supreme Court of Appeals of Virginia, which affirmed a recovery of damages in an action under the Federal Employers' Liability Act.

Messrs. S.H. Williams and Randolph Harrison, with whom Mr. A.R. Long was on the brief, for petitioner.

Mr. Duncan Drysdale, with whom Mr. Aubrey E. Strode was on the brief, for respondent.


This is a suit to recover damages for the death of the plaintiff's husband, the intestate, from the Railroad Company upon whose tracks the death occurred. The plaintiff, (the respondent here,) obtained a verdict and judgment in the trial Court and upon a writ of error the judgment was affirmed by the Supreme Court of Appeals of Virginia. 140 Va. 351 . As the recovery was based upon the Employers' Liability Act of April 22, 1908, c. 149, § 1, 35 Stat. 65, the death having occurred in interstate commerce, a writ of certiorari was granted by this Court to review certain questions of law that arose in the case. 267 U.S. 590.

The deceased was an experienced section foreman upon the defendant's road. One of his duties was to go over and examine the track and to keep it in proper repair. When inspecting the track he used a three wheeled velocipede that fitted the rails and was propelled by the feet of the user. He had obtained from his immediate superior, the Supervisor of Track, leave to use the machine also in going to his work from his house, about a mile distant, over a part of the track that was in his charge. His work began at seven in the morning and at half-past six on the day of his death he started as usual. Five minutes later he was overtaken by a train and killed. For reasons that the jury found insufficient to excuse the omission, the engineer and fireman of the train were not on the lookout, and the question raised is whether as toward the deceased the defendant owed a duty to keep a lookout, or whether on the other hand the deceased took the risk.

If the accident had happened an hour later when the deceased was inspecting the track, we think that there is no doubt that he would be held to have assumed the risk, and to have understood, as he instructed his men, that he must rely upon his own watchfulness and keep out of the way. The Railroad Company was entitled to expect that self-protection from its employees. Aerkfetz v. Humphreys, 145 U.S. 418; Boldt v. Pennsylvania R.R. Co., 245 U.S. 441, 445, 446. Connelly v. Pennsylvania R. Co., 201 F. 54; Davis v. Philadelphia R. Ry. Co., 276 F. 187; Pennsylvania R.R. Co. v. Wachter, 60 Md. 395; 4 Elliott on Railroads, 3d ed., § 1862. The duty of the railroad company toward this class of employees was not affected by that which it might owe to others.

The permission to use the velocipede in going to his work did not make the defendant's obligation to the deceased greater than it would have been after he got there. We assume that it was as effective to make the use of the car lawful as would have been a stockholders' vote spread upon the records of the company. But the implications are not necessarily the same. It was a trifling incident of daily life by which a subordinate officer of the company allowed one lower in grade to enlarge his customary use of the machine by an hour for his own convenience, although even then, in the opinion of the Court of Appeals of Virginia, already engaged in his duties. It seems to us to have been no more than an extension of his ordinary rights and his usual risks.

Judgment reversed.


Summaries of

Ches. Ohio Ry. v. Nixon

U.S.
May 24, 1926
271 U.S. 218 (1926)

In Chesapeake Ohio R. Co. v. Nixon, 271 U.S. 218, the facts were that a section foreman whose employment obliged him to go over and examine the track was on a tour of inspection. For that purpose he used a velocipede fitted to the rails.

Summary of this case from C. O.R. Co. v. Mihas

In Chesapeake O. Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 496, 70 L.Ed. 914, a section foreman while riding a motor car was overtaken by a train.

Summary of this case from McGivern v. Northern Pac. Ry. Co.

In Chesapeake O. v. Nixon, 271 U.S. 218, 46 S. Ct. 495, 70 L. Ed. 914, an experienced section foreman on a railroad, one of whose duties was to examine and repair the track, was overtaken by a train while riding from his home to his work on a three-wheeled velocipede and killed.

Summary of this case from Southern Ry. Co. v. Verelle

In C. O. Railway Co. v. Nixon, 271 U.S. 218, 46 S. Ct. 495, 70 L. Ed. 914, plaintiff surely appreciated the danger in staying on the track when a train was coming, and the constant danger that one might be coming.

Summary of this case from Emch v. Pennsylvania R.

In Chesapeake Ohio Railway Co. v. Nixon, 271 U.S. 218, the deceased, an experienced section foreman, was struck from behind and killed by a locomotive.

Summary of this case from Sweeney v. Railroad

In Chesapeake Ohio R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914, the holding was that a section man engaged in maintaining a track assumes the risk of injury from negligence on the part of train operators in failing to maintain a lookout for such employees along the track.

Summary of this case from Louisville N. R. Co. v. Parker

In Chesapeake Ohio Ry. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914, the facts were that a section foreman whose employment obliged him to go over and examine the track was on a tour of inspection. For that purpose he used a velocipede fitted to the rails.

Summary of this case from Mobile O. R. Co. v. Williams

In Chesapeake Ohio Ry. Co. v. Nixon, 271 U.S. 218, it was held that such an employee must rely on his own watchfulness to avoid trains.

Summary of this case from Johnson v. Scandrett
Case details for

Ches. Ohio Ry. v. Nixon

Case Details

Full title:CHESAPEAKE AND OHIO RAILWAY COMPANY v . NIXON, ADMINISTRATRIX

Court:U.S.

Date published: May 24, 1926

Citations

271 U.S. 218 (1926)
46 S. Ct. 495

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