*1 strike, an un mediately of reinstatement
conditional offer respondent date, rejection, was thereafter exonerated again back- reinstatement offer argument pay. The effect addressed if it were treat the letter as unfair-labor-practice-strikers. and not economic Milling Co. Cf . Kansas In B., Cir., L. R. N. however, case, the view we take of the a device the letter served strike,
breaking practice unfair labor
by exhorting return strikers to losing jobs. work, penalty their employer “an fundamental lawfully demand, a condition
precedent performance stat good bargain utory duty (i. e., faith), employees of an abandonment
protected, sur concerted or a activities rights by the Act.” render of bestowed Lozenge Co., 2 N. L. R. B. v. Pecheur
The order is enforced. JACKSON, Appellant, H.
John COMPANY, RAILWAY
SOUTHERN Appellee.
No. 19901. Appeals Court of
United States Fifth Circuit.
April
Rehearing Denied June *2 Beverly Irwin, Lewis, T. J. T. J.
Lewis, Jr., Atlanta, Ga., appellant. for Edgar Neely, Jr., Atlanta, Ga., A. for appellee. TUTTLE, Judge, Before Chief * JONES, Judges.
POPE Circuit Judge. POPE, Circuit Georgia, Appellant, a citizen of brought this action Southern Railway Company, corporation Virginia,1 seeking recovery State personal injuries for in an substantially $100,- amount excess 000. The returned a verdict plaintiff prin the sum of $2500. cipal appeal by contention this plaintiff is that the trial court commit ted error in reversible comparative negligence an instruction on * designa Circuit, sitting by prin Of the Ninth and of the State where it has its cipal place tion. of business.” See Canton v. Angelina Casualty Company, complaint 1. An examination of the indi allegation quoted F.2d 553. Had the plaintiff cates how close the came to al princi above been to the effect that “Its leging jurisdiction. lack of The com pal place doing office and “ business” etc. * * * plaint alleged: that said de Spring Street, was at 99 it would be dif fendant is a citizen of the of Vir State say plaintiff ficult had not ginia, headquarters Richmond, pleaded diversity. However, a lack of Virginia, principal and with the office stating principal that “the office and place doing Spring business at 99 place doing business” etc. was at 99 S.W., Atlanta, County, Street, Fulton Street, allega Spring when read with the designated agent Georgia, has a “headquarters Richmond, Vir tion Taylor service, Mr. M. W. at said ad simply ginia”, mean well jurisdiction dress, within the Georgia principal office at 99 * * Court; Jurisdiction Spring No Street. as to di below could be invoked under court versity citizenship was raised in the 133-2, the so-called Title 28 U.S.C. below; express indeed the answer court “diversity” jurisdiction, provides jurisdic ly admitted “that this court has that, purposes “[f]or of this sec parties.” and of the tion of the cause title, tion and 1441 of this a cor section an admission would be with such poration While a citizen of shall be deemed determining significance incorporated the court’s State which it has been if the verdict is was himself and that smallness error. less attributable to defendant, plaintiff’s than that of 'the December that on The record shows recovery “would reduced in riding mail car in a *3 to the amount of default to attributable railway postal mail a United as States objected giving Plaintiff the to part a the defend- The car of clerk. was ground of this instruction on the that At a passenger train southbound. ant’s support there was no evidence to or war- Mableton, Georgia,
point train the near rant it. signal light through stop set ran a red past point and contention the that of defendant with travel its respect freight standing propriety to the of that head on a instruc- into tion, a oppo- contention headed in the with the trial the same track and which agreed, giv- Plaintiff, court stand- is based evidence site direction. who was slightly railway en ing the several the mail clerks in the mail car rear thereof, who were in the car for- at the the center was thrown time. Billingsley, This shows that one ward into a the the a mail corner of. car near clerk, injuries stood at the door front and of the mail received from which car and jury might looked ascertained, ap- ahead the train the have on the was proaching point received, plaintiff the where the basis of evidence that collision occurred. quite damages. plaintiff, had the suffered substantial was then away, some There distance evidence from which he said 20 was feet might from position door. have He was found that a result in a of the where plaintiff he could accident neither see was disabled from work- out the door ing along nor ley, length see Billings- ahead for a considerable train. time and gone earnings $12,000. door, who had evidently lost excess of He purpose throwing for the operation underwent an the relief of mail as passed injuries; town, it pain his the next testified to looked severe ahead and said board”; suffering; and that and there train had run was a “red injuries gone perma- through that some of that it had his were a red stop signal, hospital nent. His and medical that the train bills were was not stopping. According Billingsley excess of $1300. said: “I don’t stop believe he could at Appellant that what he asserts calls a light; lights the red red, and I inadequate “grossly verdict” was due to don’t stop.” believe he can error in trial court’s an in- Billingsley negligence comparative that estimated struction on this was jury were told in before the some seconds actual which substance coili- tributory jurisdiction, charge that it we think must be said court’s relating negligence pro- court determined the trial that it charge jurisdiction “Every you, gentle- under the rule that “I had ceeded as follows: you rendering judgment, tacitly, jury, if court men of the believe from jurisdic neg- expressly, if not determines its the evidence that the defendant was subject you parties ligent further over and if believe from tion Gottlieb, particular plaintiff matter.” Stoll 305 U.S. the evidence that 137-138, ordinary 83 L. could not the exercise care Weyerhauser consequences neg- Ed. cf. Yanow avoided Steamship Company, Cir., defendant, you ligence of the but if be- judgment neg- We think that here un lieve that such you review, ligent court der the trial has in and if further effect believe that adjudged, respect negligence plain- to Southern Rail such on the such Company, not true that tiff was less than the place doing contributing alleged principal “its office defendant to the in- Georgia. then, plaintiff, was in and in business” to such such event, recover, such charge recovery pro- After to the his reduced in effect portion be barred from amount default at- recovery in the event his own eon- tributable to him.” testimony yell; he mere- was located comes from He did occurred. sion Billingsley heard that as ly Jackson he observed the red statement. made the lights position replied in the door the statement eight emergency According cord Jackson’s was six to feet .a track. double idiot, crazy appear from him. .testimony does not “You he said: Billingsley direction that was. The continued record contains track.” (cid:127)double exhibit, an diagram No. watch, on the which is a “No he’s and he then said: question. they’re going out, car track, This does not show watch same n emergency Billingsley warn- where this last valve was located. shouted hit.” Its location ing. oc- well collision have been at the that the He estimated eight rear wall of the car aft- which was seconds” curred “five or six or seven *4 door, feet from the or it alarm. been er that second on the locker the rear wall which clerk, McClure, who was another eight would seven or feet from charge car, second told about this Apparently the door. that would be a Billings- Billingsley. When alarm from ley likely though valve, location there going to be a collision: said there was “ is no * * * evidence to that effect. Jackson ‘you boys mean said one away was farther from that location than said, ‘Yes, it, I mean and that?’ And he Billingsley at that time. Well, course, next four in the brace.’ n orfive eight maybe seconds, The or seconds defendant’s contention was that thing nobody previous experience would time that or who had sort could, impact fireman, to a railroad going came.” When asked was in not elapsed emergency to the time that after that that pull- estimate valve and ing warning collision, the cord last until the Jackson after he had been warned Billingsley estimated that it was fifteen seconds. that a collision was about occur. The contention was is warning came, a When of collision Jackson had fifteen seconds in which to grabbed the rack Jackson which the on according do that because latter’s hung mail sacks were and when im- testimony fifteen elapsed seconds be- pact he thrown came some 20 feet tween the Billingsley time when shouted landing forward in the forward corner of warning and the time when the colli- Billingsley, car. the mail in the mean- sion occurred. time, had moved to the center aisle be- grabbed tween the racks the side of thinkWe that this contention mani- is distributing Although a table. the table festly showing negli- fallacious. A floor, bolted to the when the collision gence part on the of Jackson cannot be Billingsley pulled (cid:127)occurred it loose upon based actually the time which was found the floor covered with mail elapsed Billingsley’s between warning sacks.3 and the collision. bearing That has no question negli- of Jackson’s for the defendant’s claim of basis The gence. The showing (cid:127)contributory what did Jackson then know toas emergency imminence of the col- the car an there was in possible lapse. a time valve; pull lision or as to did So that Jackson brake concerned, valve, far as the record is nothing. it shows and that had on that it cord could not emergency Jackson see out of the pulled, train’s brake been car; he had no to estimate put whether system have been in action. would happen second, collision one only evidence as to where this valve “hanging found bimself out of Gardner mail clerk in the a fourth 3. There was door, Billingsley Gardner, mail was all car, over who heard one As the door was the rear of the table what he said. but did not hear call out is difficult to understand how Gardner table to which was near Gardner Billings got clung Billingsley unless the car rebounded after there which and to “moving hurry”. ley the collision. In some a n inexplicable manner, the accident sup passenger did law a seconds, He of ported by the carrier second. or half a two weight authority.4 great thing possibly do a which he We have reason to believe that Geor no protect an accident—he himself from gia hung rule and grabbed follow different the racks and certainly this rule is with the consistent both hands. passenger definition of a under the Geor assume It would be fantastic gia Code.5 mail *The fare is clerk’s have measured that Jackson should compensation course a was, valve, wherever distance to the pays the Post Office the railroad haul had run time to and calculated ing proposition ear. grab the back to the valve then run any person position passenger, of a nothing to Furthermore there racks. passenger whether in a in mail car or a aside from show where the valve was car, run-away stop owes aught Billingsley. For distance by throwing emergnecy sys on the brake might appears that pass have to here Jackson something accept. tem is that we cannot pouch racks around mail over or duty, Even if there were such a cer ever get person A confronted with there. tainly this is not such a The com case. *5 arising any peril fault sudden not plete any absence of to show lack own, of “will be held not his giving of care on Jackson’s the made right take care when he exercises the of ly complete the instruction here involved pro injury, in of avoid order of order. vided he ordi acts such care as an Georgia It is the settled law narily prudent person would exercise.” that it is error a trial court to in Clegg, 168, 170, Everett v. 97 213 Ga. jury contributory negligence struct 689, S.E.2d 691. neglig when there is no evidence of such correctly charged can rule be The court no different with ence.6 respect jury to an the this case: “The instruction defend based Georgia relating plaintiff] duty comparative statute ant extraordinary to [the owed provides care, duty the same if the complainant agents any passenger would have owed the com pany fault, both at defendant’s We do train.” the former damages question recover portion but reason charge the' this shall be dimin by by given judge ished the learned trial to the Georgia amount of who the fault was familiar with attributable law. to him. railway Ga.Code Ann. That a clerk 94-703.7 is as a matter Ry. Harrington, passenger 5. Ga.Code Ann. § Ala. 18-201: “A v. 166 4. Co. Southern public convey- 57; one 630, who travels v. Trust Malott Central 52 So. by 369; contract, express ance 428, virtue of a Co., Ind. 79 N.E. Louis or 168 implied, Dougherty, Ky. pay- with the carrier as R. Co. v. 170 to the & N. ville 10, 464; ment of 114, L.R.A.1916E, accept- or fare that which is S.W. 185 ” ** * equivalent Co., 34, ed as an Libby therefor. Maine Cent. R. 85 Me. v. 812; 943, & 20 L.R.A. Baltimore 26 A. Foundry Bain v. Athens & Machine 427, Davis, Md. 137 Ry. v. 152 R.O. Co. 725; 718, Works, 75 Ga. Healan v. Pow Chicago, 30; M. & v. St. P. Decker A. ell, 787, 793, Ga.App. 332, 91 87 S.E.2d 99, 901; Co., 112 N.W. Nix Minn. 102 Railway 336; Compa Hare v. Southern Co., Gulf, R. Mo. Mobile & Ohio 362 v. 159, Ga.App. 161, 65, ny, 66; 6 61 S.E.2d 709; 187, Hoskins v. S.W.2d North 240 Company Taxi & U-Drive-It Andrews v. Ry. Co., 394, 39 Mont. 102 Pac. ern Ga.App. 383, McEver, 386, 114 101 S.E.2d York, Seybolt etc., Co., 988; v. R. New P. 145, Pennsylvania 562; Miller v. N.Y. 95 Co., 200; 507, 7. entire section reads as follows: Pa. A.2d Illinois “No 84 368 Porter, 13, person 94 shall recover from a rail- v. 117 Tenn. R. Co. Cent. injury Washington company 606; to himself or & D. road his Carter v. O. S.W. Ry., by 458, property, the same where is done 122 Va. 95 S.E. by negli- is caused consent or his own
537
giving
present,
this
stances
where
If we assume that since
n diversity
court,
improperly
permitted the
case,
instruction
federal
tried in a
guilty
to find
are to
what matters
governed by
fed-
the instruction
to a
submitted
221,
prejudicial
Fillipon
Conner,
Albion
law,
v.
372 U.S.
error.
eral
Simler v.
82,
691,
Co.,
76,
Vein
609,
still
Slate
83
we
250
S.Ct.
9 L.Ed.2d
U.S.
435,
impro-
437,
v.
reach
failure of rehearing petition denied. G.M.B.H.,
DR. BECK AND CO. Plaintiff-Appellant, COMPANY,
GENERAL ELECTRIC Defendant-Appellee.
No. Docket 27951. Appeals
United States Court of
Second Circuit.
Argued 7,May 28,May
Decided *7 Striker, New York City, S.
Michael plaintiff-appellant. Rymer, Boston, William W. Mass. City, Berry, (Rynn York New on Kirkpatrick, brief; Boston, Mass., H. L. defendant-appellee. counsel), for FRIENDLY, KAUFMAN Before Judges.
MARSHALL, Circuit