Lackey v. Louisville & N.R. Co.

• Decision Date: 03 December 1919
• Docket Number: 3399.
• Parties: LACKEY v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F. 905

LACKEY v. LOUISVILLE & N.R. CO.

No. 3399.

United States Court of Appeals, Fifth Circuit.

December 3, 1919

G. R Harsh, of Birmingham, Ala., for plaintiff in error.

Neil P Sterne, of Anniston, Ala., for defendant in error.

Before WALKER, Circuit Judge, and FOSTER and EVANS, District Judges.

WALKER Circuit Judge.

Troupe B. Lackey, the intestate of the plaintiff in error, received fatal injuries while he was attempting to go sideways through a narrow opening between the drawheads of two freight cars on a service track of the defendant in error, which extended from its main line into the fenced inclosure of the plant of the Central Foundry Company, the intestate's employer. In the performance of his duties he was required to go from his employer's machine shop to its storeroom, which was north and outside of the inclosure, and across the service track and the main track; there being a roadway leading from the one place to the other through the opening for a gate in the fence inclosing the plant. That roadway was for the use of the Foundry Company's employes and its carts and wagons and was so used frequently. When Lackey was approaching the crossing, it was completely blocked by a car standing on the service track, the eastern end of which was 6 or 8 feet east of the eastern edge of the roadway. The opening through which he attempted to pass was between that car and the westernmost of several cars on the service track, which were coupled together and to the easternmost one of which an engine with steam on was attached. When Lackey was immediately beside the car obstructing the crossing, he could not see the engine because of a pile of iron alongside the service track east of the crossing in the direction of the engine. When he was approaching the crossing, and about 25 feet from it, he could have seen the engine; there being nothing to obstruct his view when that far from the crossing. Except when switching operations were in progress, cars on the service track were so placed as to leave the roadway unobstructed. The injury received was a result of a slight movement of the engine, and the cars attached to it, just as Lackey was attempting to pass through the narrow opening. The judgment in favor of the defendant in error followed a verdict which the court directed. The defense of contributory negligence was duly made.

If the evidence without conflict showed that the deceased was guilty of negligence which proximately contributed to the injury and death complained of, it will not be...