Hughry v. Illinois Central Gulf Railroad

489 F.2d 1037, 1974 U.S. App. LEXIS 9918

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 25, 1974
• Docket: No. 73-3259
• Status: Published

Opinion

PER CURIAM:

Plaintiff recovered damages from defendant railroad company arising out of his having been injured by a train in a switching yard. Being dissatisfied with the amount of the award, he claims error in' two particulars and seeks a new trial.

As to the first claim of error, it is not altogether clear that the court instructed the jury that plaintiff was a trespasser in that the instructions to this effect were immediately followed by another instruction that left the issue to the jury. Even assuming the jury was instructed that plaintiff was a trespasser, we find no error. The evidence was “strongly and overwhelmingly” that plaintiff was a trespasser and there was no conflict in the substantial evidence to create a jury question on the trespasser issue. Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374. On the trespasser question as presented, see Dickerson v. Illinois Central Railroad Company, 1962, 244 Miss. 733, 145 So.2d 913; Murray v. Louisville & Nashville R. Co., 1934, 168 Miss. 513, 151 So. 913.

The real contention is that the damages awarded were inadequate as a result of being reduced by the jury, pursuant to a comparative negligence in-, struction. Plaintiff did not except to the instruction, and there was an evidentiary basis for applying the doctrine with a resultant reduction in damages.

Affirmed.