Toledo, St.L. & W. R. Co. v. Allen, 276 U.S. 165 (1928)

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Toledo, St. Louis & Western Railroad Company v. Allen

No 160
Argued January 10, 11, 1928
Decided February 20, 1928
276 U.S. 165

CERTIORARI TO THE SUPREME COURT OF MISSOURI

Syllabus

Plaintiff, while checking cars in a switching yard, was struck by a car shunted down the next track. While the space between the two tracks (in which he was standing) was sufficient to enable him to keep out of the way of moving cars, the danger attending his work would have been lessened if the space had been greater. The accident occurred at night. The cars moved at from four to six miles an hour; they were unlighted and unattended and, no one warned plaintiff of their approach. He knew that switching was being done. There was nothing to show that the ordinary practice was departed from. He brought suit under the Federal Employers’ Liability Act, alleging that his injuries had been caused by the failure to maintain an adequate space between tracks and by the failure to warn him of the approach of the car.

Held:

1. The evidence is not sufficient to warrant a finding that defendant failed in any duty owed plaintiff in respect of the distance between tracks. Carriers, like other employers, have much freedom of choice in providing facilities and places for their employees, and courts will not prescribe the space to be maintained between tracks, nor leave such questions to the uncertain and varying opinions of juries. P. 169.

2. In the absence of proof that plaintiff was exposed to some unusual danger by reason of a departure from the practice generally followed, it cannot be held that defendant was in duty bound to give warning by ringing the engine bell or otherwise. P. 170.

3. Except as specified in § 4 of the Federal Employers’ Liability Act, the employee assumes the ordinary risks of his employment and, when obvious or fully known and appreciated, the extraordinary risks and those due to negligence of his employer and fellow employees. On the evidence, it is held that plaintiff assumed the risk. P. 171.

292 S.W. 730 reversed.

Certiorari, 273 U.S. 688, to a judgment of the Supreme Court of Missouri affirming a recovery of damages for personal injuries, in an action under the Federal Employers’ Liability Act.