Patton v. Texas & P. Ry. Co.

95 F. 244 | 5th Cir. | 1899

PARLANGE, District Judge,

after stating the facts, delivered the opinion of the court.

When this cause was before this court during the November term of 1893 (23 U. S. App. 319, 9 C. C. A. 487, and 61 Fed. 239), this court'said, upon a careful examination of the entire evidence:

“It seems to us that to state the ease is sufficient to show that the defendant had not been negligent, and could not justly he held liable. The exception to the charge of the court, and to the refusal of the requested charge, having served to bring up, in the bill of exceptions, a full statement of all the evidence given on the trial, it appears from the face of the record that there was no evidence to sustain the judgment of the circuit court. It is thus manifestly erroneous, and must be reversed.”

The cause was remanded to the lower court for further proceedings in conformity with the opinion of this court. At the close of the second trial below, the judge directed a verdict in favor of the Texas & Pacific Railway Company, defendant below. The plaintiff below duly excepted to that action of the trial judge, and he has brought up all the evidence in the bill of exceptions.

It is clear that the opinion of this court on the former writ of error is the law of this cause, and is still controlling therein, unless the evidence on the second trial was materially different from the evidence on the first trial. This court on the former writ of error found, substantially, that by uncontradicted evidence the following facts, among others, were established, viz.: On November 29, 1892, it became necessary to remove and replace the step in question. This was done by the engineer and the plaintiff himself. The nut which fastened the step was made tight. It was properly screwed on, and would not have become loose in a trip from El Paso to Toyah and return. The step was not removed at Toyah. The engine left Toyah at 2 a. m. on the morning of December 1, 1892. During the return trip to El Paso, the plaintiff below and the engineer got off the engine several times, on the right side, while it was standing, and neither of them noticed any disturbance of the step. When they reached El Paso on the return trip, at about 10:30 a. m. on December 1, 1892, they left the engine attached to the train at the depot, both of them getting off the engine on the right side, and using the very step in question. Neither of them noticed that anything was wrong with the step. They went to their homes. A few hours afterwards the plaintiff returned to the engine. It was. then in charge of the employés of the railway company for the purpose of being coaled, sanded, and cleaned by others than the fireman, and it was thereafter to be inspected by the machinist. The purpose of the plaintiff in then returning to the engine was to wipe off parts of the engine, and to fill the oil cans and lubricators. He was not required to, but permitted, if he chose, to do that work at the time he did it. It was more convenient to do it while the engine and the oil were still hot. He would have had ample time after the engine had been placed in the roundhouse to do his work. While, as already stated, the engine was in the hands of other employés for the purposes stated, the plaintiff undertook to do, and proceeded with, his work of cleaning parts of the engine, and filling the cans and lubricators. The engine was in motion, — running at the rate of about three or four miles an hour. It was about to stop, when the plaintiff, in order to get out of the way of other employés, and also for the purpose of getting off at the place where the engine was about to stop, stepped down backwards off the engine, using the step in question. The step turned, causing his right foot to fall under the driving wheel of the engine; and to he crushed by it. The only change in the evidence upon which the plaintiff in error relies for relief from the former decision of this court in this cause, and in fact the only difference in the evidence as heard on the first and on the second trials, — except the evidence of the engineer, Stiner, which is claimed by the defendant in error to he much stronger in its favor now than on the previous occasion, — is that Mitchell, the roundhouse foreman at Toyah, testified on the first trial that he did not remove the step at Toyah, but that all repairs called for by the engineer were made, and, in a. general way, that the engine, on leaving Toyah, was in good condition, whereas he testified on the second trial that he did remove the step at Toyah, but that he replaced it, or caused it to be replaced, properly, and that ho is sure that the nut “was screwed up i ight.” In our opinion, this change in the testimony of Mitchell cannot affect what was adjudicated by this court on the former writ of error. This court then found (hat there was no evidence of negligence on the pari of the defendant railway company for which it could be made liable. Under the views then expressed by this court, what evidence of such negligence is there now to be found in the record? If either one of Mitchell’s statements be true, the plaintiff in oi-i-or can derive no benefit from it; for, whether Mitchell did not lake off the step at Toyah, or took it off and replaced it properly, the ease must go against: the plaintiff in error, under the views heretofore expressed by this court. If Mitchell, because of his contradictory sta¡omenis, is unworthy of belief, his evidence should be disregarded and eliminated. But the fact that Mitchell made two contradictory statements — *both of which are favorable to the railway company — cannot be held to he equivalent to, or to supply the place of, proof of negligence on the part of the railway company, directly (he reverse of either of the contradictory statements. A bare suspicion that Mitchell did not properly fasten the step at Toyah, arising merely from the fact that he made two contradictory statements, would not have warranted the jury in finding against the railway company. The uncontradicted facts remain established that the plaintiff himself assisted in fastening the step at El Paso; that this was sufficient to secure the nut for the round trip to Toyah and back; that the step was used, and was not loose, while going and returning; that after the arrival at El Paso on the return trip the step was used by the plaintiff himself, and was only found loose a few hours afterwards, while the engine was under the control of other employes of the railway, whose duty it was to coal it, sand it, and do such other necessary things as might be required, except repairing, and when the engine was to be taken immediately thereafter to the roundhouse, where it was to be inspected, and where it would, if necessary, have been repaired. On such facts, and under the views of this court expressed on the first writ of error, the plaintiff below could not recover. The judgment of the lower court is affirmed.