Franchina v. Chicago, B. & Q. R.

Citations

• 195 F. 462
• 115 C.C.A. 364
• 1912 U.S. App. LEXIS 1396

Syllabus

<p>1. Trial (§ 143*)—-Direction of Verdict—Power of Court.</p> <p>A conflict of a substantial character in the evidence bearing on a material issue necessitates a submission of the issue to the jury.</p> <p>[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. § 143.*]</p> <p>2. Master and Servant (§ 286*)—Action for Injury to Employé—Working on Track—Questions for Jury.</p> <p>Plaintiff’s intestate was struck and killed by a train while engaged with a number of others in doing repair work on defendant’s railroad track. The men were strung along the track for nearly half a mile, and deceased was the last one reached by the train, and was working alone several hundred feet from the nearest group. The negligence alleged by plaintiff was that no signal was given of the train’s approach. Other workmen who were standing to one side while the train passed testified that they did not hear any signal, and one or more testified positively that the bell was not rung, nor the whistle sounded. This testimony was contradicted by the engineer and fireman. Held, that the witnesses for plaintiff were in such situation that they should have heard the signals if given, and their testimony could not be ignored, and that it created such a substaniial conflict iff the evidence upon the vital issue in the case that it was error to direct a verdict for defendant.</p> <p>[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1016-1050; Dee. Dig. § 286.*]</p>