Wright v. Yazoo & M.V.R. Co.

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Citation197 F. 94
Decision Date21 February 1912
PartiesWRIGHT v. YAZOO & M.V.R. CO.

Barton & Barton, of Memphis, Tenn., for plaintiff.

Fitzhugh & Biggs, of Memphis, Tenn., for defendant.

McCALL District Judge.

This case is before me upon a motion for a new trial. Twenty-four grounds are assigned as a basis for the motion. All of them may be overruled without comment, except the eighth, which was the court's refusal to submit to the jury the question of the assumption of risk.

The case was heard and submitted to the jury under the federal Employers' Liability Act. As far as need be quoted here that act provides:

'That every common carrier by railroad while engaging in commerce between any of the several states and territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employe, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery track, roadbed, works, boats, wharves, or other equipment. * * * That * * * the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe: Provided, that no such employe * * * shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe. That * * * such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.'

The facts are that the defendant left a cut of cars standing on a side track at Gwyn, Miss., not 'in the clear' of a lead track. The deceased engineer was proceeding along the lead track with his engine and train, and had approached so close to the cut of cars before he attempted to stop his train that, when he discovered that he could not clear it, he was then unable to stop his engine, and it collided with the cut of cars, resulting in his death.

The specific question raised by the assignment is whether or not the deceased engineer, while running his engine into the yards of the defendant at Gwyn, Miss., assumed, by his contract of employment, the risk and danger incident to the negligently leaving by the defendant of a cut of cars not 'in the clear' of the track on which the deceased's engine was moving.

It requires no argument to convince me that the defendant was guilty of negligence in leaving a cut of cars on a siding within striking distance of an engine moving on the track on which the deceased's engine was proceeding, and for two reasons: First. The rules of the defendant company require of its servants that they shall place cars on the sidings in the clear. This rule is a safe and reasonable one, and it was negligence to violate it. Second. In the absence of such rule, it would be negligence in the company to place and leave a cut of cars so that it would be within striking distance of an engine moving over an adjacent track in the manner the...

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13 cases
  • Favre v. Louisville & N. R. Co
    • United States
    • Mississippi Supreme Court
    • January 24, 1938
    ...Trust Co. v. Tennessee V. & G. Railroad Co., 73 F. 660; New York C. & St. L. R. Co. v. Peele, 164 N.E. 705, 49 S.Ct. 263; Wright v. Y. & M. V. R. R. Co., 197 F. 94; Derrington v. Southern Ry. Co., 40 S.W.2d Chesapeake & O. Ry. Co. v. Shamblen, 179 S.W. 837; Youngstown & O. R. R. Co. v. Halv......
  • Perry v. Missouri-Kansas-Texas R. Co.
    • United States
    • Missouri Supreme Court
    • April 21, 1937
    ... ... 26 Ky. 472, 11 S.W.2d 131; Thrall v. Ry. Co., 254 ... Mich. 174, 236 N.W. 230; Wright v. Railroad Co., 197 ... F. 94; Boston Co. v. Benson, 205 F. 876; Boyet v ... Davis, 217 ... ...
  • Manson v. Great Northern Railway Company
    • United States
    • North Dakota Supreme Court
    • October 26, 1915
    ... ... the act. Philadelphia, B. & W. R. Co. v. Tucker, 35 ... App. D. C. 123, L.R.A.1915C, 39; Wright v. Yazoo & M ... Valley R. Co. 197 F. 94; Southern R. Co. v ... Howerton, Ind.App. , 101 N.E ... ...
  • Lusk v. Osborn
    • United States
    • Arkansas Supreme Court
    • January 29, 1917
    ...Id. 536; 114 Id. 870; 95 U.S. 439; 237 Id. 499; 229 Id. 114; 223 Id. 1; 91 Ark. 86; 88 Id. 20; 187 S.W. 920. 4. Nor did he assume the risk. 197 F. 94; 207 Id. 281; U.S. 375; 233 Id. 572; 238 Id. 507. 5. If the remarks of counsel were improper, they were not prejudicial. 74 Ark. 256; 93 Id. ......
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