New Orleans & C.R. Co. v. Schneider

• Decision Date: 12 December 1893
• Docket Number: 157.
• Citation: 60 F. 210
• Parties: NEW ORLEANS & C. R. CO. v. SCHNEIDER.
• Court: U.S. Court of Appeals — Fifth Circuit

60 F. 210

NEW ORLEANS & C. R. CO. v. SCHNEIDER.

No. 157.

United States Court of Appeals, Fifth Circuit.

December 12, 1893

John M Bonner, for plaintiff in error.

E Howard McCaleb, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.

McCORMICK Circuit Judge.

The defendant in error was a passenger on one of the cars of plaintiff in error, and her arm was broken by coming in contact with an iron post planted near the track. She sued the company, claiming damages for this injury. She alleged that she was seated by a window that was open when she entered, and took her seat in the car, and that afterwards she rested her arm upon the window sill; that the car turned, and (while running on a switch recently constructed for temporary use by the plaintiff in error) suddenly passed so close to an iron post standing near the track that the post violently struck her arm, and broke it between the elbow and the shoulder. The plaintiff in error excepted to the petition, in that it showed no cause of action. The overruling of this exception is the first of the assigned errors.

The plaintiff in error, after the proof was closed, requested the trial judge to direct a verdict for the company, and assigns as error his refusal to withdraw the case from the jury. To support this assignment all the evidence is brought up. The party injured testifies that she did not have her arm out of the window before the accident, but had it resting on the sill of the window. The surgeon who attended her testified 'that the arm showed no bruise at any other point than at the seat of the fracture, which was just halfway between the elbow and the shoulder; the fracture was a simple fracture evidently from a direct blow just over the seat of the fracture. Had the arm been projecting out of the window, and the post struck it, the injury would have been below the elbow,--would have been below where it was in this case,--and my impression, therefore, is that the arm was broken by a blow received just over the seat of the fracture, because there was no perceptible injury at any other place, and a very slight mark of injury over that.' One witness, who was in the car when the accident occurred, and seated on the other side of the car, just opposite to and facing the lady who was hurt, testifies that 'her elbow was resting on the sill of the car window, and, as the car went on this temporary switch, * * * the car jolted very much, * * * that caused the arm to be thrown out of the car, and come in contact with the post.' One witness, in the car at the time, sitting on the same side with the party injured, and next to her, about one foot away, testifies that she put her elbow out of the window. 'I saw by her position; I remember that by her position her arm was out of the car,...