1. In an action under the Employers' Liability Act for death of
a switchman, killed while on the outside of a moving car by being
brought into contact with a semaphore near the track, there is no
ground to charge negligence in placing the semaphore too near the
track when the distance exceeds the minimum permitted by the state
railroad commission, and when it does not appear that to make the
place safe by increasing the distance would have been practicable
for the railroad company. P. 283 U. S.
2. The question in such cases is not whether a reasonable
insurance of employees against injury should be thrown upon the
traveling public through the railroads, but whether the railroad is
liable under the statute according to the principles of the common
law regarding tort. P. 283 U. S.
3. The denial of a writ of certiorari imports no expression of
opinion upon the merits of the case. Id.
159 S.E. 473, reversed.
Certiorari, 282 U.S. 836, to review a judgment affirming a
judgment for the present respondent in an action under the Federal
Employers' Liability Act.
Page 283 U. S. 402
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an action under the Federal Employers' Liability Act for
causing the death of Marshall, the respondent's deceased. It has
been before the Court after an earlier trial, Atlantic Coast
Line R. Co. v. Tyner,
278 U.S. 565, and now is brought here
again to review a judgment of the Supreme Court of South Carolina
affirming a judgment for the plaintiff. 159 S.C. 159 S.E. 473. The
petitioner contends that it was entitled to have a verdict directed
in its favor on the grounds that there was no evidence that it was
negligent, and that Marshall must be taken to have assumed the risk
of the supposed cause of his death.
It may be assumed that Marshall, a switchman was killed while on
the outside of a moving car by being brought into contact with a
semaphore near the railroad track. The only ground for charging the
Company with negligence that we regard as material is the
suggestion that the semaphore was too near the track. The general
principles laid down with regard to mail cranes in Southern
Pacific Co. v. Berkshire, 254 U. S. 415
Chesapeake & Ohio Ry. Co. v. Leitch, 276 U.
, apply equally to semaphores. It is impracticable
always to set such structures so far away as to leave no danger to
one leaning out, and, in dealing with a well known incident of the
employment, adopted in the interest of the public and of the
employees, it is unreasonable to throw the risks of it upon those
who were compelled to adopt it.
Page 283 U. S. 403
The semaphore in this instance was four feet and ten inches at
its base from the outer edge of the track, and probably a little
more at four feet above the top of the rail. An order of the South
Carolina Railroad Commission, made, as it states, in consideration
of the safety or the public and employees of the road and of the
necessity for employees to give and receive signals, provides that
no structure be allowed nearer than four feet from the outer edge
of the main or side track, measurement being made four feet above
the top of the rail. It will be seen that the Railroad Company in
this case more than complied with the order. It is true that four
feet was a minimum distance, but it satisfied the requirement of
the Commission, and it would be going far to say that the railroad
company was not warranted in supposing that it had done its duty,
so far as the Commission was concerned, when it put the semaphore
four feet and ten inches away. Marshall, from his previous
experience, probably knew of the semaphore, as he was required to
do by the rules of the road. It was shown that some other
semaphores were farther from the track, but the circumstances do
not appear, and there is nothing to show that in this case the
petitioner could have made the position safer than it was except by
changing the place of the track. As remarked in Southern
Pacific Co. v. Berkshire, 254 U. S. 415
254 U. S. 417
the question is not whether a reasonable insurance against such
misfortunes should be thrown upon the traveling public through the
railroads, but whether the railroad is liable under the statute
according to the principles of the common law regarding tort. No
negligence is proved against the petitioner. It is urged that a
certiorari was denied in Central of Georgia Ry. Co. v.
7 F.2d 269, which seemed to qualify the doctrine of the
case. But "The denial of a writ of certiorari
imports no expression of opinion upon the merits of the
Page 283 U. S. 404
case, as the bar has been told many times." United States v.
Carver, 260 U. S. 482
260 U. S. 490