Kanawha & Michigan Ry. Co. v. Kerse, 239 U.S. 576 (1916)

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Kanawha & Michigan Railway Company v. Kerse

No. 129

Argued December 10, 1915
Decided January 10, 1916
239 U.S. 576

ERROR TO THE CIRCUIT COURT OF KANAWHA COUNTY

STATE OF WEST VIRGINIA

Syllabus

Where the highest appellate court of the state refuses to allow a writ of error to review a judgment based on a verdict, the writ of error from this Court is directed to the trial court.

Under the Employers’ Liability Act, the action lies for injury or death resulting in whole or in part from the negligence of the officers, agents or employees of such carrier.

To conduct switching operations upon a switch obstructed in such manner as to endanger the lives of brakemen upon its cars is evidence of negligence on the part of the railroad company, and the existence of such an obstruction for a considerable period of time is presumptive evidence of notice to the company.

The burden of proof of assumption of risk is on the employer, and unless the evidence indisputably shows such assumption, the trial court does not err in refusing to take that question from the jury.

Knowledge of a fixed obstruction over a track in such position as not to clear a man standing on top of a box car necessarily imports a risk to an experienced brakeman, and, in the absence of evidence of objection on his part or promise of reparation by the employer, assumption of the risk.

The fact that the court erroneously refused defendant’s request for an instruction as to plaintiff’s assumption of risk based on the hypothesis of the latter’s knowledge of an existing condition is not ground for reversal where the jury, by a specific finding, negatived that hypothesis.

The facts, which involve the validity of a verdict and judgment in an action for injuries under the employers’ Liability Act, are stated in the opinion.