West v. Chicago, B. & Q. Ry. Co.

Citations

• 179 F. 801
• 103 C.C.A. 293
• 1910 U.S. App. LEXIS 4706

Syllabus

<p>1. Master and Servant (§ 286*) — Master’s Liability for Injury to Servant — Low Bridge Over Railroad.</p> <p>In an action against a railroad company to recover for the death of a brakeman on a freight train who was killed in the night while on top of the cars in the course of his duty by his head striking an overhead bridge, proof that the clearance between the rails and such bridge was more than two feet less than the standard or usual clearance maintained by the company in case of such permanent overhead structures made a prima facie case of negligence against the defendant, which 'could only be met by proof of a necessity which could not reasonably be avoided, and which was not conclusively overcome by evidence that the bridge was for a highway crossing, and that when it was rebuilt some time before the highway commissioners objected to its being raised because of the steepness of the approaches, it not being shown that such objection could not have been overcome by also raising the approaches nor that it was impracticable to do so.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Gent. Dig. §§ 1010-1050; Dec. Dig. § 286.*]</p> <p>2. Master and Servant (§ 286*) — Action for Injury to Servant — Questions for Jury.</p> <p>Where there was direct and positive testimony of apparently disinterested and reputable witnesses that “telltales” to give warning of the approach to the bridge, wbicb had been taken down six weeks before, had not been replaced at the time of the injury, although contradicted, the question was one for the jury.</p> <p>[Ed. Note. — Eor other cases, see Master and Servant, Cent. Dig] §§ 1010-1050; Dec. Dig. § 286.*]</p> <p>3. Master and Servant (§ 217*) — Assumption of Risk — Railroad Brakeman — Low Bridge.</p> <p>To charge a railroad brakeman with assumption of the risk of injury from a low overhead bridge, by which he was struck and killed, it must be shown that he had either actual or constructive notice, not only of the existence