Davies v. Chicago, M. & St. P. Ry. Co.

Seventh Circuit

Davies v. Chicago, M. & St. P. Ry. Co.

236 F. 728, 150 C.C.A. 60, 1916 U.S. App. LEXIS 2334

CourtCourt of Appeals for the Seventh Circuit

DecidedOctober 3, 1916

DocketNo. 2354

StatusPublished

This text of 236 F. 728 (Davies v. Chicago, M. & St. P. Ry. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davies v. Chicago, M. & St. P. Ry. Co., 236 F. 728, 150 C.C.A. 60, 1916 U.S. App. LEXIS 2334 (7th Cir. 1916).

Pincite

Opinion

PER CURIAM.

The serious injuries sustained by plaintiff in error, evoking the natural sympathy of this court, as of the trial court, have caused us most carefully to review the evidence on the error assigned in the direction of a verdict for defendant. We are, however, constrained to concur in the conclusion of the trial judge, for the reason stated by him in directing the verdict and in overruling the motion for a new trial, that there is no such evidence of negligence as would have justified the submission of the cause to the jury.

Defendant adopted a switch, standard in height and distance from tracks, for use between two parallel main tracks spaced apart at a standard distance. No proof was offered tending to show, either that the progress of the art had made any of these standards obsolete, or that the switch so located was dangerous or unsuited to the particular locality. That with the use of a different switch, at this particular point, under the circumstances of the accident, the injuries would probably have been averted, is not in itself sufficient to justify a finding of negligence.

The proof that the distance from the top of the tic to the lowest step on which plaintiff could stand, plus the measurement from plaintiff’s sole to'the hip bone, which was struck, exceeded the height of the switch stand by nearly two feet, demonstrated that either plaintiff was not knocked off the step by the stand, as he had testified, or that he was in an unusual squatting position. We concur in the view of the trial judge that such a position was necessarily so unusual as not to be reasonably foreseeable by defendant, or to lay a foundation for the negligence charged in not lowering the standard height of the switch, a height clearly sufficiently low under all but extraordinary conditions.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

The serious injuries sustained by plaintiff in error, evoking the natural sympathy of this court, as of the trial court, have caused us most carefully to review the evidence on the error assigned in the direction of a verdict for defendant. We are, however, constrained to concur in the conclusion of the trial judge, for the reason stated by him in directing the verdict and in overruling the motion for a new trial, that there is no such evidence of negligence as would have justified the submission of the cause to the jury.

Defendant adopted a switch, standard in height and distance from tracks, for use between two parallel main tracks spaced apart at a standard distance. No proof was offered tending to show, either that the progress of the art had made any of these standards obsolete, or that the switch so located was dangerous or unsuited to the particular locality. That with the use of a different switch, at this particular point, under the circumstances of the accident, the injuries would probably have been averted, is not in itself sufficient to justify a finding of negligence.

The proof that the distance from the top of the tic to the lowest step on which plaintiff could stand, plus the measurement from plaintiff’s sole to'the hip bone, which was struck, exceeded the height of the switch stand by nearly two feet, demonstrated that either plaintiff was not knocked off the step by the stand, as he had testified, or that he was in an unusual squatting position. We concur in the view of the trial judge that such a position was necessarily so unusual as not to be reasonably foreseeable by defendant, or to lay a foundation for the negligence charged in not lowering the standard height of the switch, a height clearly sufficiently low under all but extraordinary conditions.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

236 F. 728, 150 C.C.A. 60, 1916 U.S. App. LEXIS 2334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davies-v-chicago-m-st-p-ry-co-ca7-1916.