Chicago, M. & St. P. Ry. Co. v. Benton

Citations

• 132 F. 460
• 65 C.C.A. 660
• 1904 U.S. App. LEXIS 4341

Syllabus

<p>J, Trial — Injury to Employ^ — Peremptory Instruction.</p> <p>The foreman of a switching crew in the yard of a railway company was walking a few feet in advance and to the side of the rear of a train of backing cars, signaling to the engineer, when the rear car was derailed by low joints in the track, veered upon and killed him. These low joints were opposite each other, had existed for six months, and the fish plates upon them were loose. They were at a busy place in the yard, where during daylight the wheels of about 600 cars pounded over them daily. They were perceptible to one riding over them upon a train, but they were at a street crossing, which was planked, and there was no evidence that the foreman had ever examined them, or that he knew the condition of the fish plates. Held, the questions of negligence, assumption of risk, and contributory negligence were for the jury.</p> <p>(Syllabus by the Court.)</p> <p>¶ 1. Assumption of risks incident to employment, see note to Chesapeake & O. B. Co. v. Hennessey, 38 C. C. A. 314.</p>