A flagman, struck and killed by a train, could not recover for an injury caused by the deceased’s neglect unless his presence and peril were discovered by those in charge of the train in time to avoid striking him.
A flagman was sent out to watch for trains and warn them of construction on a bridge ahead. While on the job, he was struck by a train coming midway through a curve. Decedent’s estate sued the railway that owned the freight train. The lower court directed a verdict and an appeal followed.
Can an individual recover where there is no evidence of a negligent act or omission of duty on the part of a railway?
The trial court's directed verdict was affirmed. If one's death is caused solely by one's own negligence, one cannot recover under either the state law or the Federal Employers' Liability Act. The court held that the evidence did not clearly establish that the train could have stopped in time. Further, it was not shown that the deceased was in a helpless condition when he was discovered on the track.