Where a railway collision, killing an engineer, was directly due
to neglect of his personal duty not to move his train forward
without positively ascertaining that another train had passed, the
possibility that the accident might have been prevented but for
contributory negligence of other members of the crew in not
performing the look-out duty devolving also upon them will not
sustain an action by his representative against the carrier under
the Federal Employers' Liability Act. P.
266 U. S.
148.
Reversed.
Certiorari to a judgment of the Supreme Court of Tennessee
affirming a judgment for death by personal injuries, recovered
under the Federal Employers' Liability Act.
Page 266 U. S. 148
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action under the Employers' Liability Act of April
22, 1908, c. 149, § 1, 35 Stat. 65, brought by the
administratrix of David Kennedy to recover damages for his death
upon a railroad while under federal control. The death was caused
by a collision between two trains called No. 1 and No. 4, west of a
point known as Shops which was two and a half miles west of
Nashville, Tennessee. The tracks were double from Nashville to
Shops, but after that, the track was single. No. 1, bound for
Nashville, had the right of way, and the crew of No. 4, bound
westward, had instructions never to pass Shops unless they knew as
a fact that No. 1 had passed it. Kennedy was the engineer of No. 4.
The conductor had told him that the train was crowded, and had
asked him to look out for No. 1, which Kennedy agreed to do. He ran
his train on beyond Shops however and the collision occurred.
The trial was in a Court of the State of Tennessee, and the
plaintiff got a judgment which was sustained by the supreme court
of the state on the ground that the other members of the crew, as
well as the engineer, were bound to look out for the approaching
train, and that their negligence contributed as a proximate cause
to the engineer's death. We are of opinion that this was error. It
was the personal duty of the engineer positively to ascertain
whether the other train had passed. His duty was primary, as he had
physical control of No. 4, and was managing its course. It seems to
us a perversion of the statute to allow his representative to
recover for an injury
Page 266 U. S. 149
directly due to his failure to act as required on the ground
that possibly it might have been prevented if those in secondary
relation to the movement had done more.
Frese v. Chicago,
Burlington & Quincy R. Co., 263 U. S.
1,
263 U. S. 3.
Judgment reversed.
