McNabb v. Virginian Ry. Co.

• Decision Date: 12 January 1932
• Docket Number: No. 3226.,3226.
• Citation: McNabb v. Virginian Ry. Co., 55 F.2d 137 (4th Cir. 1932)
• Parties: McNABB v. VIRGINIAN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

55 F.2d 137 (1932)

McNABB v. VIRGINIAN RY. CO.

No. 3226.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1932.

A. A. Lilly, of Charleston, W. Va. (Lilly, Lilly & Warwick and R. G. Lilly, all of Charleston, W. Va., on the brief), for appellant.

John R. Pendleton, of Princeton, W. Va. (Harry C. Ellett, of Princeton, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT and SOPER, Circuit Judges.

PER CURIAM.

Willie McNabb, appellant, brought this action of trespass on the case against the Virginian Railway Company, a corporation, appellee, and against H. Clay Jacobs and R. C. Lambert, in the circuit court of Fayette county, W. Va. The cause was subsequently removed to the District Court of the United States for the Southern District of West Virginia, and the defendants H. Clay Jacobs and R. C. Lambert were dismissed as defendants, and, the defendant, Virginian Railway Company, having pleaded not guilty, the issue was tried before a jury in May, 1931.

After the conclusion of the evidence for both the plaintiff and the defendant, the court, upon motion of the defendant, directed the jury to find for the defendant, which was accordingly done. The plaintiff moved to set aside the verdict of the jury, and to grant him a new trial, which motion the court overruled. From that judgment this appeal is taken.

The appellant, who was plaintiff below, was struck by a locomotive of the railway company at a road crossing near Deep-water, Fayette county, W. Va. There is evidence on behalf of the railway company that the headlight was burning on the locomotive and that the crossing signals were duly given. Plaintiff and a witness testified that the light was not burning. Assuming that the evidence was sufficient to carry the case to the jury on the issue of negligence, we think that plaintiff was unquestionably barred of recovery by his contributory negligence and that verdict was properly directed against him. We think it clear in the light of the evidence that, if plaintiff had looked before stepping in front of the approaching locomotive, he could unquestionably have seen it in time to have avoided being struck, and his injury is therefore to be attributed to his own negligence in stepping in front of the locomotive without taking proper precautions. A number of witnesses on both sides, who had no better view than the plaintiff, testified that they saw the approaching locomotive. In view of the physical conditions disclosed by the other evidence, his testimony that he looked but failed to see the locomotive approaching is without probative force and entirely insufficient to form the basis of a verdict in his behalf.

Had the jury returned a verdict for the plaintiff, it would have been the duty of the trial judge in the exercise of a sound judicial discretion to set it aside. It was therefore proper for...