Ingram v. Atlantic Coast Line Railroad

Per Curiam. There is no’ evidence to sustain tbe first allegation of negligence as it was the duty of tbe engineer only to keep a lookout for tbe signals of tbe intestate, who was then in charge of tbe movement of tbe train, and to follow bis signals, and all of tbe evidence shows tbat be performed this duty. Nor do we think tbat tbe failure to have a derailer or jack-knife bad anything to do with tbe death of tbe intestate, who knew tbat there was no derailer or jack-knife in tbe storage track, and whose duty it was to place tbe cars and see tbat they were clear of tbe pass track, and tbe responsibility for tbe performance of this duty rested solely on him. If a derailer or jack-knife bad been in tbe track and be bad performed bis duty, before pushing tbe ears into tbe storage track, be was required to set tbe appliances so tbat tbe cars would pass over them, and their use would not have prevented tbe ears from reaching tbe place where tbe intestate left them. He also could easily see where tbe cars were as they were much more easily perceived than tbe appliances referred to, and, according to tbe evidence, be could have ascertained definitely tbat tbe cars were not in tbe clear when be signaled to tbe engineer to move backward. It appears therefore tbat tbe death of tbe intestate was caused solely by tbe failure on bis part to perform tbe duty which bad been entrusted to him alone, and under such conditions a recovery cannot be sustained under tbe Employer’s Liability Act, which controls this decision, because tbe intestate was engaged in interstate commerce. *494 In R. R. v. Skaggs, 240 U. S., 66, an authority relied upon by the plaintiff, the plaintiff, a brakeman, was crushed between two cars because one had been left too near the track, and a recovery was sustained, but upon the ground that there was another brakeman connected with him in the operation of the train, and that the evidence supported the contention of the plaintiff that his injury resulted from the negligence of a fellow-servant, but the Court says, in the course of the opinion, “the statute does not contemplate a recovery by an employee for the •consequences of action exclusively his own.” The syllabus in R. R. v. Wiles, 240 U. S., 444, is as follows: “There is no room for the application of the rule of comparative negligence established by the Employer’s Liability Act of 22 April, 1908 (35 Stat. at L. 65, ch. 149, Comp. Stat. 1913, par. 8657), where the rear brakeman of a parted freight train, disregarding his duty to protect the rear of his train by going back a short distance and giving the warning signals which the carrier’s rules required, remained in the caboose and was killed there when a passenger train, which he knew was closely following, ran into the standing train, since his was the causal negligence, even if negligence could be imputed to the carrier from the pulling out of the drawbar which caused the train to break in two, there being no claim that the passenger train was negligently run.” In Baugham v. R. R., 241 U. S., 237, the facts were much more favorable to the plaintiff than in this action, and it was held that the plaintiff had assumed the risk and could not therefore recover. Affirmed.