Mitchell v. Toledo, St. L. & W. R.

Citations

• 197 F. 528
• 117 C.C.A. 24
• 1912 U.S. App. LEXIS 1308

Syllabus

<p>1. Triad (§ 178*) — Direction of Verdict — Consideration of Evidence.</p> <p>On a motion to direct a verdict, the court cannot properly undertake to weigh the evidence, but must take that view of it most favorable to the party against whom the motion is made, and from that evidence and the inferences reasonably and justifiably to be drawn therefrom determine whether or not, under the law, a verdict might be found for such . party.</p> <p>[Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 401-403; Dec. . Dig. § 178.*] ^</p> <p>& Master and Servant (§§ 286, 288, 289*) — Action foe Injury to Servant— ' Questions for Jury.</p> <p>Plaintiff’s intestate was employed in the yards of defendant railroad ■ company, and was directed by the foreman to assist an inspector in re- . placing a door which had fallen from a car some distance from where the car then stood, coupled .to.others, on a switching track. Alongside of such' track was another, on the side where the door was to be placed, on ‘ which there were also cars, leaving a space of two feet between the lines. The door weighed 200 pounds, and, when the two men had carried it around the string' of cars where they must go between the two lines,</p> <p>they stopped to rest, standing the door on edge and each holding to it. While so standing an engine shoved other cars against those standing, causing them to start suddenly, and the end car ran over the door, was :•■partially derailed, and plaintiff’s intestate was killed. From where the . men:were they co.uld not see the engine or cars approaching. Held, that it was the duty of defendant to take gome measure to protect its car repairers when directed to work on cars on tracks where switching was being done, not only while actually at work thereon, hut while going to such work by the only way possible, and that it could not be said as matter of law;, that it was not negligent, nor that deceased assumed the ..risk of such negligence or was chargeable with contributory n