Southern Ry. Co. v. Gadd

Citations

• 207 F. 277
• 125 C.C.A. 21
• 1913 U.S. App. LEXIS 1623

Syllabus

<p>1. Pleading (§ 236*)—Amendment to Conform to Proofs—Discretion of Court.</p> <p>It is within the discretion oí a federal court to permit au amendment of a declaration on the trial to conform to the proofs, including the testimony of plaintiff himself.</p> <p>LEd. Note.—For other cases, see Pleading, Cent. Dig. §§ 601, 605; Dec. Dig. § 236.*]</p> <p>2. Master and Servant (§ 286*)—Injury to Railroad Fireman—Negligence.</p> <p>In an action against a railroad company for injury to a iireman on a, switch engine at night, there was direct testimony that the engineer sent plaintiff down to examine a part of the engine, and that as plaintiff was coining up the steps with his torch burning, in full view of the engineer, the latter suddenly started the engine, throwing plaintiff under the wheels. Held that, if the engineer saw plaintiff in such position of danger, his starting the engine was negligence, and that, under the evidence, whether he did so see him was a question for the jury.</p> <p>LEd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010-1015, 1017-1033, 1036-1042, 1044, 1046-1050; Bee. Dig. § 286.*]</p> <p>3. Master and Servant (§ 216*)—Master’s Liability foe Injury to Servant—Assumption of Risk.</p> <p>The negligence of the engineer in such case, under Employer’s Liability Aet April 22, 1908, c. 149, § 1, 35 Stat. 65 (TJ. S. Comp. St. Supp. 19li, p. 1322), was the negligence of defendant, and even under the common law plaintiff did not assume the risk of injury from sucli negligence in operating the engine in an unusual and unexpected maimer.</p> <p>LEd. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dee. Dig. § 216.*</p> <p>Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]</p> <p>4. Trial (§ 178*)—Motion for Directed Verdict—Consideration of Evidence.</p> <p>On a motion for directed verdict, the court must take the view of the evidence most favo