Clark v. Zarniko

Citations

• 106 F. 607
• 45 C.C.A. 494
• 1901 U.S. App. LEXIS 3601

Syllabus

<p>1. Contributory Nesligence — Peremptory Instruction.</p> <p>If, at tlio close of tlie trial of an action for damages for negligence, the evidence conclusively discloses the fact that tlie plaintiff was guilty of negligence which contributed to his injury, it Is the duty of the trial court to instruct the jury to return a verdict for the defendant.</p> <p>3. Purpose and Effect of Section 573, 0. 9, Consol. St. Nkjb. 1891.</p> <p>Section 572, c. 9, Consol. St. Neb. 1891, which provides that every railroad company shall be liable for all damages indicted upon the persons of passengers while being transported over its road, except in cases where the injuries arise from the criminal negligence of the persons injured, does not make a common carrier an insurer of the safely of passengers, but merely establishes a presumption that damages inilieted upon a passenger are entirely attributable to the negligence of the railroad company.</p> <p>3. Gross Contributory Negligence Fatal to Recovery under This Statute.</p> <p>Tf, at the close of the trial of an action by a passenger for negligence, under this statute, the evidence discloses the fact that the plaintiff was guilty of gross negligence, — that is, of a flagrant and reckless disregard of his safety, — which contributed to his injury, such negligence is fatal to his recovery, and it is the duty of the court to instruct the jury to return a verdict for the defendant.</p> <p>Caldwell, Circuit Judge, dissenting.</p> <p>(Syllabus by the Court.)</p>