An experienced car inspector was found dead with his lantern at
night between a track on which a freight train was being made up
and the main track parallel to it, over which a train, by which he
was probably killed, had passed with much noise and a bright light,
but with bell silent, twenty minutes before his body was
discovered. He was last seen alive twenty minutes before the train
passed. There were indications that there was nothing to inspect at
the time when the accident occurred.
that a verdict of damages based on the assumption
that he was engaged in inspecting the freight cars, relying on the
customary ringing of the bell, and so absorbed in his work that he
did not hear the approaching train was mere guesswork. P.
276 U. S.
291 S.W. 528 reversed.
Certiorari, 275 U.S. 514, to a judgment of the Supreme Court of
Texas which, reversing the Court of Civil Appeals, affirmed a
judgment for damages recovered from
Page 276 U. S. 304
the railway in an action under the Federal Employers' Liability
Act. The judgment of the Supreme Court was entered on the
recommendation of the Commission of Appeals. See
312; 287 id.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action under the Employers' Liability Act for the
death of one R. D. Ferguson, who was a car inspector on the
petitioner's road. No one saw the death, but the body was found
between the main track and a parallel track, and the probability is
that Ferguson was killed by a train going north on the former. A
freight train was being made up on the parallel track, and the
hypothesis of the respondent, supported by little if anything
except the place where the body and the lantern of the deceased
were found, is that Ferguson was engaged in inspecting the cars,
and so absorbed in his work that he did not hear the approaching
train, but was relying upon the ringing of the engine bell, which
usually was rung but which the respondent's witnesses say was not
rung on this occasion. The court below sustained the verdict on
this ground. Ferguson was seen not later than a quarter before
seven in the evening, so far as time can be fixed. The train passed
at five minutes after seven, the time at which it was known by him
to be due. His body was found at twenty-five minutes after seven.
He was an experienced man. The indications are that there was
nothing for him to inspect at the probable time of his death. At
best, it is a mere guess that he
Page 276 U. S. 305
was so engaged, still more that he was absorbed in such work.
The main track was straight, and the train was making a great noise
and showing a bright light as it approached. Nothing except
imagination and sympathy warranted a finding that the death was due
to the negligence of the petitioner, rather than to that of the man
himself. It is unnecessary to consider whether, if the case for the
plaintiff were stronger, the principle of Chesapeake & Ohio
Ry. Co. v. Nixon, 271 U. S. 218