Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7 (1929)

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Delaware, Lackawanna & Western Railroad Company v. Koske

No. 219

Argued January 17, 1929
Decided February 18, 1929
279 U.S. 7

CERTIORARI TO THE COURT OF ERRORS

AND APPEALS OF NEW JERSEY

Syllabus

1. A case under the Employers’ Liability Act that was tried in the courts below upon the theory that the place of the accident was a certain ditch in a railway yard, as to which it was adjudged that the railroad company was negligent and that the plaintiff had not assumed the risk, cannot be reviewed upon the theory that the place may have been some other depression or hole in the yard of the existence of which no finding is warranted by the evidence. P. 9.

2. A railway employee, alighting in the dark from an engine in a railway yard in the course of his employment fell into a shallow ditch near the track which had long been maintained there for drainage purpose and with the location and condition of which he had long been familiar. In an action under the Federal Employers’ Liability Act for resulting injuries, held:

(1) That the railway company was not proven to have been guilty of any breach of duty owed the employee either in adopting and maintaining the ditch, rather than some other method of drainage, or in respect of its condition at the time and place in question. P. 11.

(2) That, as a matter of law, the employee had assumed the risk, and the company was entitled to a directed verdict. P. 12.

3. The fact that sunrise occurs considerably before seven o’clock during some weeks immediately before June 4th may be judicially noticed. P. 12.

104 N.J.L. 627 reversed.

Certiorari, 278 U.S. 586, to a judgment of the Court of Errors and Appeals of New Jersey affirming a recovery of damages in an action under the Federal Employers’ Liability Act.