San Pedro, L.A. & S.L.R. Co. v. Davide
| Decision Date | 02 February 1914 |
| Docket Number | 2,266. |
| Citation | 210 F. 870 |
| Parties | SAN PEDRO, L.A. & S.L.R. CO. v. DAVIDE. |
| Court | U.S. Court of Appeals — Ninth Circuit |
A. S Halsted and Pennel Cherrington, both of Los Angeles, Cal for plaintiff in error.
Harris & Swanwick, Burt Chellis, and Chas. E. Donnelly, Jr., all of Los Angeles, Cal., for defendant in error.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
The defendant in error was in the employment of the plaintiff in error as a section hand. He was engaged in ballasting the track of the main line of the plaintiff in error between Las Vegas and Caliente in the state of Nevada. There were about 80 men employed on the work. On April 25, 1911, the men quit work at 5 o'clock in the evening, and were returning to their camp on hand cars, of which there were seven or eight. The defendant in error, with five or six others, was riding on the third car from the front, with his back to the car ahead of him, and was assisting in propelling the hand car. The cars were going at a speed of from 9 to 10 miles an hour. The car in front of the defendant in error was going at the same speed with the others until, while passing through a tunnel, the men on that car became tired and slackened their speed, and the car came out of the tunnel slowly. At that point the car on which the defendant in error was, following rapidly, collided with it, and thereupon the car immediately following the one on which he was, struck his car, and by these collisions the defendant in error was thrown off and injured.
The cause of action was founded on the federal Employers' Liability Act of April 22, 1908, as amended April 5, 1910. The complaint alleged that the defendant in error was acting under the direction of the section foreman of the railroad company, and that he was injured by reason of the negligence of other employes of the company, who materially slackened the speed of the hand car immediately ahead of his, and by reason of the negligence of other employes in allowing the car following his to collide with his car. At the conclusion of the evidence, the plaintiff in error requested the court to direct a verdict in its favor on the ground of the insufficiency of the evidence to show negligence on its part and on the ground that at the time of the accident the defendant in error was not engaged in any act of interstate commerce. The two questions thus suggested are the only questions presented to this court.
The jury, under proper instructions from the court, found that the fellow servants of the defendant in error were negligent as alleged in the complaint. In view of all the testimony, we think that question was properly submitted to the jury. There was evidence tending to show negligence in that the employes...
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Schuppenies v. Oregon Short Line Railroad Co.
... ... v. Western M. R. Co., 246 Pa. 460, 92 A. 698; ... Southern P. L. A. & S. L. R. Co. v. Davide, 210 F ... 870, 127 C. C. A. 454; Grow v. Oregon S. L. R. Co., ... 44 Utah 160, 138 P. 398; ... ...
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