A locomotive engineer assumes the risk of being struck by a mail
crane or mail sack hanging from it (
Southern Pacific Co. v.
Berkshire, 254 U. S. 415),
even though placed some inches closer to the track than the general
plan for the railroad provided, no unquestionable disregard of
obvious precautions being shown. P.
276 U. S.
430.
101 W.Va. 230 reversed.
Certiorari, 273 U.S. 678, to a judgment of the Supreme Court of
Appeals of West Virginia sustaining a recovery in an action under
the Federal Employers' Liability Act.
Page 276 U. S. 430
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action brought by the respondent, an engineer, to
recover from the petitioner for injuries suffered by him through
contract with a mail crane or mail sack hanging from it as he
looked from the window of his engine upon the petitioner's road.
There is no doubt that the case is governed by the Federal
Employers' Liability Act, but the respondent got a verdict in the
state court, which was sustained by the Supreme Court of Appeals,
Leitch v. Chesapeake & O. R. Co., 101 W.Va. 230, and
the question is whether there is any sufficient distinction between
this and
Southern Pacific Co. v. Berkshire, 254 U.
S. 415, in which it was held that the engineer took the
risk. The grounds of that decision were that it is impracticable to
require railroads to have no structures so near to their tracks as
to endanger persons who lean from the windows of the cars; that
they are obliged to erect mail cranes near enough to the tracks for
the trains to pick up mail sacks without stopping; that it is
almost, if not quite, impossible to set the cranes so far away as
to leave no danger to one leaning out, and that, in dealing with a
well known incident of the employment, adopted in the interest of
the public, it is unreasonable to throw the risk of it upon those
who were compelled to adopt it.
Of course, it is answered that these general considerations
should not exonerate the railroads from using such care as they can
within the conditions. But it seems to us unjust to let the risk of
a danger that, in any event, is imminent vary upon disputed
evidence that the danger was brought an inch or two nearer than it
would have been if a blueprint adopted for the whole line had been
followed with a more precisely mathematical accuracy. In the
Berkshire case, the testimony for the plaintiff left a
distance of fourteen inches from the end of the crane to the car.
Here, the plaintiff's witness makes it ten. The
Page 276 U. S. 431
witnesses for the petitioner, with greater plausibility, make it
appreciably more. If there is to be a standard in these cases, and
if, as decided, the general rule is that the engineer takes the
risk, the railroad should not be made liable for this class of
injury except where some unquestionable disregard of obvious
precautions is shown. The plaintiff here, as in
Berkshire's case, well knew of the existence of the crane,
which had been in place for three or four years. He was an
experienced engineer, and although here, as there, presumably he
never had measured the distance, he, like Berkshire, knew the fact
that threatened danger. At the trial, Leitch testified that he was
looking to see the position of a block signal, pointedly
contradicting a statement that he dictated and signed near the time
of the accident. He admitted, however, that it was the fireman's
business to look out for the block and notify him, and the
fireman's more favorable position for seeing and other
circumstances sufficiently indicate that there was no great or
sudden emergency, if that would affect the case. Without discussing
the evidence in detail, we are satisfied upon a consideration of it
that it does not show grounds for making an exception to the
general rule.
Judgment reversed.