Elliott v. Canadian Pacific Ry. Co.

Citations

• 129 F. 163
• 1904 U.S. App. LEXIS 4742

Syllabus

<p>1. Master and Servant — Railroads—Car Inspectors —Wrongful Death-Question for Jury.</p> <p>In an action for the wrongful killing of a ear inspector by his being run over by a car started by other cars violently switched against the same, evidence as to defendant’s negligence held to present a question for the jury.</p> <p>2. Fellow Employés — Incompetency.</p> <p>Where, in an action for wrongful death of a car inspector, it was claimed that his injuries resulted from the negligence of an incompetent brakeman, evidence tending to show that the person acting for defendant in employing such brakeman shortly before the accident was the brakeman’s cousin, and that he had doubt as to the brakeman’s proper command of himself when braking cars, he not having been so previously employed, was sufficient to justify a finding that defendant was negligent in employing such brakeman.</p> <p>3. Same — Contributory Negligence.</p> <p>Where, before going in front of a car to test the knuckle of a coupling, a car inspector saw an engine and certain other cars a considerable distance away, and if they had been moved at the ordinary speed of cars in switching they could not have reached the car he was inspecting until long after he had accomplished his object, he was not guilty of contributory negligence as a matter of law in placing himself in front of the ear, which might be run against and over him.</p> <p>4. Same — Federal Courts — Defenses.</p> <p>In an action for wrongful death in the federal courts, contributory negligence is a matter of defense, unless the proof shows an absolute act of negligence so plain that the minds of reasonable men would not differ concerning it.</p> <p>5. Same — Pleading.</p> <p>In an action in the federal courts for wrongful death, the declaration need not allege absence of contributory negligence.</p> <p>6. Same — Objections after Verdict.</p> <p>Where the gist of an action for the wrongful death of a ear inspector was the running of several cars w