Louisville & N.R. Co. v. Woodward
Decision Date | 22 February 1910 |
Docket Number | 1,971. |
Citation | 176 F. 5 |
Parties | LOUISVILLE & N.R. CO. v. WOODWARD. [1] |
Court | U.S. Court of Appeals — Fifth Circuit |
Intestate a car inspector employed by defendant in its yards, went between two cars of a train being made up to couple the air hose, when the engine backed other cars against those so standing, and he was killed. He was an experienced inspector and knew that the rules prohibited him from going between the cars until the train was fully made up, and such train was not due to leave for an hour and a half. He could also have seen the approaching engine had he looked. Held, that he was chargeable with contributory negligence as a matter of law and there could be no recovery from defendant for his death.
John C Eyster, for plaintiff in error.
W. W. Callahan, for defendant in error.
Before PARDEE and SHELBY, Circuit Judges, and FOSTER, District Judge.
This was an action by M. E. Woodward, administrator, against the Louisville & Nashville Railroad Company for damages for the death of one Ed. Ezell, alleged to have been caused by the negligence of said company.
Plaintiff's pleadings originally contained four counts, and by amendment allowed a fifth count was added, but before the case went to the jury he abandoned the second, third, and fourth counts of the complaint. The material part of count No. 1 is as follows:
Defendant interposed nine pleas, and, on settlement of the pleadings, demurrers were sustained to the second, seventh, and eighth pleas. Defendant's pleas, as allowed, set up, first, the general issue; and, second, the contributory negligence of the deceased, on the following grounds:
That he knew that the train was being made up on the track at said place, and that it was his duty to wait until it was made up before commencing to inspect it; that it was his duty, and he knew it to be such, to prevent harm by placing a blue flag at the end of each of said cars, and he failed to do so; that he had no duty to perform at the place where he was at the time he received his injuries; that he went in between two cars that were standing still, without looking to see whether an engine and cars were approaching upon said track; that there was nothing to obstruct his view; that, had he looked, he would have seen the cars approaching; that the cars were standing on said track, and he knew the train was being made up by the engine and cars approaching in a curve; and that the position where he was inspecting said cars was on the outside of the curve, where he could not see the engine, and he negligently, knowing that he could not see the engine, went between the cars.
Defendant's plea No. 2 is substantially covered by the pleas allowed. Plea No. 7 sets up the negligence of plaintiff's intestate in failing to comply with defendant's rule No. 315, of which he had knowledge, and plea No. 8 sets up his knowledge of, and negligence in failing to comply with, defendant's rules No. 316 and No. 38. The rules referred to are as follows:
Rule 315: 'They must carefully examine the couplings in trains after they are made up, and see that the links and pins are of proper size, and report to the yardmaster any imperfections.'
Rule 38: Defendant offered these rules in evidence at the trial and the court admitted rule 315, but excluded rules 316 and 38.
Defendant assigns as error, among other grounds, the sustaining of demurrers to its pleas Nos. 7 and 8, the exclusion of rules 316 and 38, and the refusal of the court to give the following instruction:
'If the jury believe the evidence, they will find for the defendant.'
The plaintiff introduced but one witness, C. H. Wilson, also a car inspector on duty at the same time, as to the actual happening of the accident. We excerpt from his testimony as follows:
Joseph Jacob was the only witness who testified for defendant. His uncontradicted evidence is, in part, as follows:
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