US SUPREME COURT DECISIONS

After serving as a brakeman in the employ of a railroad company, S. became a conductor on the same railroad, and as such had been engaged at a depot yard at one of its stations at least once a week, and usually oftener, for seven years. While making up his train at that yard, preparatory to running out with it, after the chief brakeman had failed in an attempt to make a coupling, he tried to make it. There was an unblocked frog at the switch where the car was. He put his foot into this frog, and was told by the brakeman that he would be caught if he left it there. He took it out, but put it in again, and, being unable to extricate it when the cars came together, he was thrown down and killed. In an action brought by his administratrix against the railroad company to recover damages, held that S. must be assumed to have entered and continued in the employ of the railroad company with full knowledge of any danger which might arise from the use of unblocked frogs, that he was guilty of contributory negligence, and that the company was entitled to a peremptory instruction in its favor.

This was an action in the District Court for the first Judicial District of the Territory of Utah against the Southern Pacific Company, a railroad corporation, brought by Isabella Seley, administratrix of William B. Seley, deceased, to recover damages for the death of her husband, caused by the alleged negligence of the defendant company. The Southern Pacific Company was incorporated under the laws of the State of Kentucky, and is engaged in operating the Central Pacific Railroad, running between the City of Ogden, in Utah, and a point in California.

Seley was, for seven years prior to his death, a conductor upon freight trains on the lines of the Southern Pacific Company and of its predecessor, the Central Pacific Railroad Company, and before that time had been a brakeman in the same employ. In the course of his business, he was engaged in the depot yard at Humboldt Wells at least once a week, and usually oftener. chanrobles.com-red

Page 152 U. S. 146

The accident in which Seley met his death took place on July 7, 1887, at this depot yard, while he was making up his train preparatory to running out with it.

The chief brakeman, named Hardy, had met with some difficulty in coupling a car, and had twice failed to make the coupling. The other brakeman had also failed in an attempt to couple the car. Seley undertook to effect the coupling. His first effort was a failure, the link slipping. At this time, Hardy testifies that he warned Seley to take his foot out of the frog, that he would be caught.

Seley made a second attempt, and, while endeavoring to make the coupling, again put his foot into the frog, from which he was unable to extricate it when the cars came together. He was thrown down by the brake beam, the wheel passed over him, and he was instantly killed.

At the close of the plaintiff's evidence, the defendant moved for a nonsuit. This was refused, and an exception was allowed. At the close of the entire evidence, the defendant asked the court to instruct the jury to find a verdict for the defendant. This was refused, as were likewise certain instructions prayed for. A verdict for $7,500 was rendered in favor of the plaintiff, on which judgment was entered, a motion for a new trial having been overruled. This judgment was affirmed by the supreme court of the territory, to whose judgment a writ of error was brought to this Court. chanrobles.com-red

Page 152 U. S. 150