Great Northern Ry. Co. v. Shellenbarger

Citation54 F.2d 606
Decision Date23 February 1932
Docket NumberNo. 6482.,6482.
PartiesGREAT NORTHERN RY. CO. v. SHELLENBARGER.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Charles A. Hart, Fletcher Rockwood, and Carey, Hart, Spencer & McCulloch, all of Portland, Or., for appellant.

Arthur M. Dibble, Malarkey, Dibble & Herbring, and Frank G. Smith, all of Portland, Or., for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.

WILBUR, Circuit Judge.

This is an action brought by a passenger to recover from the carrier damages for injuries received by the passenger by reason of falling from a passenger train in motion; the passenger having recovered judgment in the lower court, the carrier, the Great Northern Railway Company, appeals from the judgment upon the ground that the court erred in denying its motion for a directed verdict. The accident occurred as an eastbound passenger train of the Great Northern Railway Company approached a siding at the town of Saco, in the state of Montana. The appellee claims that he was thrown through an open vestibule door by a sudden lurch of the train, due to excessive speed over a track under construction. There is no dispute as to the proposition that the appellee passed through the open vestibule door on the left or north side of the eastbound train at a point about a mile west of the siding which the train was to take in order to pass a westbound train. It was admitted by the brakeman that this door was opened by him before it was necessary for him to do so for the purpose of operating a switch which the train was approaching. He testified, however, that it was necessary for him to open the door when the train slowed down in order to fulfill his duty to protect the rear of the train if it became necessary to do so by flagging trains approaching from the west.

The appellee testified that at about 10:30 p. m. he decided to leave the observation car and go forward to his berth in a sleeping car; that as he stepped into the rear vestibule of the car immediately in front of the observation car the train gave a violent and sudden lurch, and he was catapulted out of the car through the vestibule door, and does not remember touching anything until he struck the ground. The brakeman, on the other hand, testified that he had opened the door of the vestibule and was standing on the trapdoor looking out through the vestibule door with his back to the vestibule, his left hand resting on the brake lever on one side, and his right hand, raised to the level of his shoulder, extending across the opening and resting against the door on the other side, thus completely blocking the passageway to the open vestibule door; that some one touched his right arm gently; that he removed it, and the appellee walked past him and stepped off into space before he could stop him.

Appellant's theory is that the passenger became confused and made a right angle turn and walked off into space, believing that he was entering the sleeping car immediately ahead of the observation car. The appeal is presented on the theory that there is no contradiction of the testimony of the brakeman, that his testimony is in effect supplementary to, and not in conflict with, the testimony of the appellee, and that therefore it was the duty of the court and, of course, the jury to accept the testimony of the brakeman as to the way in which the accident occurred.

It is elementary that, in considering the testimony upon a motion for a directed verdict, the evidence should be construed most favorably to the other party, and, after verdict, of course, all the evidence and inferences properly deducible therefrom tending to support the verdict must be indulged by the appellate court. With this rule in mind, the appeal must be determined upon the theory that the train was going 50 miles an hour over a track parallel to one which was under construction, in...

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1 cases
  • Callaway v. Hart
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 2 avril 1945
    ...253; Carter v. Kurn, 8 Cir., 127 F.2d 415; Minneapolis St. P. & S. S. Ry. v. Galvin, 6 Cir., 54 F.2d 202; Great Northern Ry. Co. v. Shellenbarger, 9 Cir., 54 F.2d 606; Holle v. Delaware, L. & W. R. Co., 122 N. J. L. 358, 5 A.2d 874; Daly v. Pryor, 197 Mo.App. 583, 198 S.W. 4 Clanton v. Sout......

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