200 F. 375 | 8th Cir. | 1912
John McCormick, an engineer in the service of the Chicago Great Western Railroad Company, was killed by the derailment of his engine at a point in Iowa where section men engaged in repairing the track had removed a rail. His wife, as ad-ministratrix, claiming that no warning of the broken track was given him, sued the company and obtained judgment.
“That fact of itself — the fact that he [the engineer] could see them, or the fact that he did see them — is not of itself .evidence of his contributory negligence.”
The court evidently meant that the fact referred to did not by itself establish contributory negligence, and not that it was not evidential. Moreover, this view of the instruction was expressed in the exception taken by counsel at the time. The exception did not direct the attention of the court to the particular point of objection, and on appeal it is too late to enlarge or change it.
The judgment is affirmed.