Dixon v. Virginian Railway Company, 7493.
| Decision Date | 13 November 1957 |
| Docket Number | No. 7493.,7493. |
| Citation | 250 F.2d 460 |
| Parties | Roan DIXON, Appellant, v. VIRGINIAN RAILWAY COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Louis B. Fine, Norfolk, Va. (Howard I. Legum, Norfolk, Va., on the brief), for appellant.
Leigh D. Williams, Norfolk, Va. (Williams, Cocke, Worrell & Kelly, Norfolk, Va., on the brief), for appellee.
Before SOPER, SOBELOFF and HAYNSWORTH, Circuit Judges.
The plaintiff, Dixon, was hit in the arm by a hook attached to a steel cable with which he and another employee of the Railway were attempting to move a boxcar. He filed suit under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. After all of the testimony had been taken, the plaintiff moved for peremptory instructions that the Railway was guilty of negligence which was the proximate cause of the injury and that the plaintiff had not been contributorily negligent. These motions were denied, and the issues of negligence and contributory negligence were submitted to the jury. The jury brought in a verdict for the defendant. This appeal is from the judgment entered on the verdict.
The evidence showed that the plaintiff, who had been employed for some time as a laborer in the car repair shop of the Railway, and one Seaborn, a fork lift truck driver, were sent to open and unload a boxcar containing supplies for the shop. They thought the unloading of the car would be facilitated by moving the car a few feet. While various tools were available for this purpose, they decided to attach a 5/8ths inch steel cable having a ¾ths inch hook at either end to the fork truck and to the boxcar and thus to move the car with the motive power of the fork truck, pulling on the ground outside of the crossties. They had moved cars short distances by this procedure and with the same equipment on many previous occasions.
The plaintiff set the hook at the end of the cable into a recess in one of the trucks of the boxcar. Seaborn started the fork truck, and, to facilitate the movement of the boxcar, gave it a "jerk." The hook slipped or came out, bent partially open by the force, and it, or the clips by which it was fastened to the cable, hit the plaintiff's arm.
So much is substantially uncontradicted, but beyond that the testimony was sharply conflicting.
There was testimony that the hook was too light for the purpose and was intended for use in opening the doors of boxcars. There was testimony that larger hooks were available, that the plaintiff himself selected this one and had used it successfully on many occasions in moving boxcars. There was also testimony that the safer procedure was to take up gently the slack in the cable, not to jerk the boxcar, though Seaborn testified that to give the car a slight jerk is the usual and necessary procedure.
There was testimony which, if believed by the jury, would have permitted it to find that the hook was placed by the plaintiff in a shallow recess in the truck of the boxcar so that all of the force was applied to the point of the hook, its weakest part, rather than in the curve of the hook and that, had it been properly placed by the plaintiff, it would have neither opened nor slipped. There was also testimony that the plaintiff had been instructed orally and in writing to stand clear of taut cables. After the plaintiff had placed the hook, Seaborn testified the plaintiff gave him the signal to go ahead, but demonstrably the plaintiff, instead of moving toward the rear of the boxcar, a position of absolute safety, moved toward the fork truck. The cable with the hooks attached had an overall length of only 11 feet, and the plaintiff had to be within that distance of the rear of the fork truck at the moment of maximum tension to have been hit by the flying hook.
From the foregoing, it is apparent that the jury...
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Vivian v. Atchison, T. & S.F. Ry. Co., 6785
...of contributory negligence. We find no error in submission of the question of contributory negligence to the jury. Dixon v. Virginia Ry. Co., 4 Cir., 250 F.2d 460. The issues of defendant's liability under the Federal Employers' Liability Act and the fact that plaintiff's negligence proxima......
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Shannon v. NORFOLK AND WESTERN RAILWAY COMPANY, Civ. A. No. 173-69.
...drawn different inferences or conclusions or because judges feel that other results are more reasonable. In Dixon v. Virginian Railway Company, 250 F.2d 460, 462 (4th Cir. 1957), in passing on the issue of negligence and contributory negligence, it was That is not to say that there was not ......
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Baker v. Norfolk and Western Railway Company, Civ. A. No. 260-69-N.
...321 U.S. 29, 35, 64 S. Ct. 409, 88 L.Ed. 520; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Dixon v. Virginian Ry. Co., 250 F.2d 460, 462 (4th Cir. 1957). Plaintiff cites the annotation in 20 A.L.R.2d 276, as authority for the court to set the verdict aside and grant a new......
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