Mexican Cent. Ry. Co. v. Townsend, 114 F. 737

Mexican Cent. Ry. Co. v. Townsend

114 F. 737 | 5th Cir. | 1902

SHELBY, Circuit Judge,

after stating the facts, delivered the opin' ion of the court.

In determining the question whether it was proper to give peremptory instructions in favor of the plaintiff, we must look at the case as it appears from' that part of the evidence which is most favorable to the defendant; for we must concede to the defendant anything which it could fairly claim from the evidence. It had the right to ask the jury to believe the evidence that was favorable to it. When a party asks for peremptory instructions in his favor, he must concede all that his opponent may fairly claim from the evidence presented. -When a passenger sues the carrier, proof of an accident carries with it a presumption of negligence on the part of the carrier. But a different rule prevails in a suit by an employé against the employer. The accident in the latter case carries with it no such *741presumption. The employé is required to prove the negligence of the employer. Patton v. Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361. The evidence unquestionably shows that immediately after the accident the brace that was intended to support the end of the running board was down. The evidence on the part of the plaintiff also shows that the board which was broken was wind-shaken, cross-grained, and rotten. The evidence on the part of the defendant tended to show that the board broken was sound. There is no conflict, however, in the evidence that the brace or support at the end of the board was loose, and hanging down, when the car was examined after the accident. It appears to us that from the condition of the car either one of two conflicting inferences might have been drawn: The jury might infer that the brace became loose and came down since the last inspection of the car, and at or about the time of the accident; or they might infer that it was for some time — probably a few days — in this condition, with the brace misplaced as described by the witnesses who saw it immediately after the accident. If it was in such condition at the time when the car was or should have been inspected, it would clearly have been negligence in the inspector not to discover and report the defect. On the other hand, other inferences might be made if the car was inspected the day before or shortly before the accident, and the brace was in place, and the part of the running board which broke was sound, and sufficient for the purposes for which it was used; or, if unsound and weather-shaken, it was covered with paint, and the defect hidden, so that it -was not perceptible or discoverable by proper inspection. From the fact that the brace was hanging down aud misplaced when the accident occurred, the jury might infer that it was in that condition at the time when an inspection was or should have been made. But this inference seems to us, from the facts, not compulsory. A contrary inference is not irrational. The evidence tends to show that an inspection was made before the accident,— probably the day before the accident. Although the witness was examined, cross-examined, and re-examined, he is not asked in what condition he found the car. He does say though, in reference to a later inspection, “Anything unsafe to run we report;” and, as we understand the evidence, this car was not reported. A piece of board was in evidence before the jury. The evidence of the witness producing it tended to show that it was a part of the board which had been broken at the time of the accident; not the part broken off, but the part left on the car at that time. The witness producing it testified that it was sound; that it was not wind-shaken or rotten. If unsound, whether it was so painted as to cover the defects from sight or inspection is left uncertain. It appears, however, to have been painted, but it is left to inference whether it was in such condition that on the day before the accident a proper inspection would have discovered the defects in it, conceding it had defects. It might have been inferred that the defect was perceptible and long-existing; but, to sustain the instruction given the jury, that alone is not sufficient. It must also appear that no other inference was reasonable; that is, to sustain the instructions given, the evidence must be such *742that no other inference but that of negligence of the defendant could be reasonably drawn from the facts in evidence. The evidence altogether, as presented in the bill of exceptions, is amply sufficient to authorize a jury to make such inferences as would justify a verdict for the plaintiff, yet we are constrained to say that it is not such as to justify us in saying as matter of law that no reasonable inference could be drawn from it except that of the negligence of the defendant. The evidence in the record tends strongly to - sustain the inferences drawn from it by the learned trial judge, but we cannot hold that the jury could have made no rational inference to the contrary, and we are therefore constrained to decide that the case, on proper instructions, should have been submitted to the jury.

The judgment of the circuit court is reversed, and the cause remanded for a new trial.