
    No. 774
    CHESAPEAKE & O. RY. CO. v. KERNS
    U. S. Appeals, 6th Circuit
    No. 4541.
    Decided May 5, 1926
    829. NEGLIGENCE — Not actionable negligence, where car foreman fails to notify car repairer of intended movement of cars in another part of the track on which repairer was at work when such repairer was never in danger; but was injured in attempting to get from under the car, actuated by his alarm.
    Attorneys — Galvin & Tracy, Cincinnati, for Company; William F. Marsteller & D. F. Andreson, Cleveland, for Kerns.
   MOORMAN, C. J.

Lon Kerns brought an action against the Chesapeake & Ohio Railway Co. for injuries sustained while attempting to get but from under a car which he had been repairing; and recovered damages in the District Court.

It seems that Kerns was engaged in repairing a car when he heard other cars in the repair yards bump. Upon looking up he saw several cars moving in his direction, and becoming alarmed he attempted to rise, slipped and fell against a wheel of the car, thereby resulting in the injury cmoplained of.

It was claimed by the car foreman that Kerns was never in danger by the movement of the ears in the repair yard for the reason that he had taken every precaution necessary to insure the safety of the men engaged in car-repairing. Kerns claimed that the failure of the car foreman to notify him of the movement of cars was negligence. The Company prosecuted error from the judgment of the lower court and the Circuit Court of Appeals held:

1. It is admitted that Kerns was never in danger from the movement of the cars.
2. The question to determine, is whether the car foreman’s failure to notify Kerns of the intended use of part of the track upon which he was working, was actionable negligence, even thuogh giving it would have merely saved him from becoming alarmed.
3. One is required to anticipate only the probable results of his wrongful act.
4. Kern’s contention is that the foreman should have foreseen the probable sesult of the failure to notify him in that by his alarm and in seeking a place of safety an injury might occur in some unusual manner.
5. It would be extending the rule of proximate cause beyond a reasonable scope to hold that the foreman was required to anticipate this second improbable contingency.

Judgment reversed.  