272 F. 439 | 5th Cir. | 1921
R. E. Williams was the roadmaster of the Louisiana Railway & Navigation Company (hereinafter styled the railway), a common carrier engaged in interstate commerce. His duties required him, among other things, to supervise the keeping in repair of the track of said railway for use in interstate commerce. While engaged in his duties as such roadmaster in supervising said work, and also at the same time in making an inventory of the property and material on said right of way, traveling upon a hand car furnished him by said railway for use in connection with his work, the hand car was derailed by plank which had been placed by certain persons between
At the conclusion of the testimony for the plaintiff a motion was made to direct a verdict for the defendant, on the ground that plaintiff’s testimony showed he was not engaged in interstate commerce at the time he was injured. The court thereupon permitted plaintiff to reopen his case, and plaintiff thereupon testified that at the time of his injury he was engaged in his duties of supervision of the construction and repair forces on said road as roadmaster, and was discharging such duties at the same time when making said inventory.
The errors assigned are: (1) The refusal to direct a verdict for the defendant at the close of plaintiff’s testimony. (2) Allowing plaintiff to reopen his case.and testify further as to the nature of his employment at the time of the accident. (3) The refusal to direct a verdict for the defendant at the close of the entire testimony. (4) The refusal to give in charge a request of the defendant. (5) The refusal to grant a new trial.
The testimony showed, without practical contradiction, that the hand car was derailed by the plank in question being too near the rail, sp that it caused the flange of the wheel of the hand car to ride the rail and leave the track. There was testimony that it was the duty of the section foreman, if said plank had been in such position for a length of time sufficient to enable him to discover its location, to have removed the same and that a failure to so remove it would be negligence. While there was a conflict in the testimony as to whether such plank had been so placed for as long as a week before the accident, or had been put there only a few hours before the same, there was sufficient evidence to Warrant the jury in concluding it had been so placed for as much as a week, and there was no substantial contention but that the same should have been discovered by the section foreman, if so placed for as long as a week, and that it constituted a dangerous situation.
The charge of the court fairly submitted to the jury this question, and whether the section foreman was negligent in not discovering ánd removing tire same, also if the plaintiff was guilty of contributory negligence in not seeing the obstruction and avoiding the same, and instructed the jury that if such contributory negligence was the proximate cause of the accident he could not recover. The court also fairly submitted to the jury their duty to diminish the amount of damages award-' ed, if they found such contributory negligence existed on the part of the plaintiff, even if they found that the proximate cause of the accident was the negligence of the defendant company through its section foreman.
The judgment of the District Court is affirmed.