Huff v. Louisville & Nashville R. Co., No. 13725.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HOLMES, RUSSELL, and RIVES, Circuit
• Citation: 198 F.2d 347
• Parties: HUFF v. LOUISVILLE & NASHVILLE R. CO. et al.
• Docket Number: No. 13725.
• Decision Date: 24 July 1952

198 F.2d 347 (1952)

HUFF
v.
LOUISVILLE & NASHVILLE R. CO. et al.

No. 13725.

United States Court of Appeals Fifth Circuit.

July 24, 1952.

Amos L. Ponder, Jr., New Orleans, La., for appellant.

Harry McCall, Jr., Harry B. Kelleher, Geo. B. Matthews, all of New Orleans, La., for appellee.

Before HOLMES, RUSSELL, and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The District Court entered summary judgment for the defendants. The deposition of the plaintiff had been taken and the court was of the opinion that under the plaintiff's own version of the accident there was no liability on the part of the defendants.

The plaintiff, a passenger of the defendant railroad company, traveling in a Pullman car, departed Washington, D. C., May 13, 1950, at approximately 7:15 p. m. en route to New Orleans, Louisiana. On the next day approximately one-half hour before arriving at Flomaton, Alabama, the

198 F.2d 348

plaintiff made inquiry of the Pullman porter as to whether or not a telegram could be sent from the train. He was advised that the porter could not attend to it, but that the plaintiff himself could send the message from the railroad station either at Flomaton or at Mobile, Alabama. As an added precaution the plaintiff proceeded to the lounge car adjoining his Pullman car and made inquiry of the porter of that car, and received information to the same effect. Both porters told him that the train would stop at Flomaton for ten minutes, which would allow him ample time to send the telegram. The porter of his Pullman car brought the plaintiff some telegraph blanks and, to avoid unnecessary delay, the plaintiff wrote out his message before the train arrived at Flomaton

When the train reached Flomaton and the plaintiff debarked, the porter of his Pullman car first held out his hand for a tip and then withdrew it recognizing that the plaintiff had not reached his destination. At that time there was a freight train standing on a track between the railway station and the train on which the plaintiff was a passenger. This freight train was split, the cars being uncoupled directly in front of the main entrance to the station, in order to give passengers a passageway between the station and the train upon which the plaintiff was a passenger. The plaintiff testified that it took less than a minute to complete the leaving of his message for transmission, and that during this time the gap or split in the freight train had been closed by the coupling of the cars, thereby preventing an unobstructed path to his train. There was no testimony of any warning of the immediate departure of the plaintiff's train, and the plaintiff testified that he heard no signal of "all aboard" or other indication that his train was about to depart. As the plaintiff returning to his train proceeded around the rear end of the parked freight train, he observed that his train was already in motion.

He ran across the intervening track, mounted the concrete platform adjacent to his train, grasped some projection or protuberance from a car and running along by the side of the train attempted to get two Pullman porters to open the car door so that he might enter, the lower...