Luckenbach Steamship Co. v. Buzynski

Fifth Circuit

Luckenbach Steamship Co. v. Buzynski

31 F.2d 1015, 1929 U.S. App. LEXIS 3659, 1929 A.M.C. 737

Court of Appeals for the Fifth Circuit·Decided April 23, 1929·No. No. 4786·Published·Cited by 2 cases

Opinion

FOSTER, Circuit Judge.

On a former hearing we reversed a judgment of the District Court in favor of appellee. 19 F.(2d) 871. The ease is fully covered by our opinion above referred to, and need not be restated. From an inadvertent and unnecessary statement that the accident might have been caused by the negligence of a fellow servant, the Supreme Court reached the conclusion that we had found there was evidence that the accident was so caused, and reversed our decision. 277 U. S. 226, 48 S. Ct. 440, 72 L. Ed. 860. We did not intend to make any such finding. A further examination of the record fails to disclose any evidence tending to show negligence on the part of either defendant, except the happening of the accident. The case presented is not one for the application of the doctrine of res ipsa loquitur, and the cause of the accident is a matter of mere speculation and conjecture. We find no grounds for changing onr opinion formerly expressed. Louisville & N. R. Co. v. Chatters, 49 S. Ct. 329, 73 L. Ed.-, decided April 15, 1929.

Reversed.

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FOSTER, Circuit Judge.

On a former hearing we reversed a judgment of the District Court in favor of appellee. 19 F.(2d) 871. The ease is fully covered by our opinion above referred to, and need not be restated. From an inadvertent and unnecessary statement that the accident might have been caused by the negligence of a fellow servant, the Supreme Court reached the conclusion that we had found there was evidence that the accident was so caused, and reversed our decision. 277 U. S. 226, 48 S. Ct. 440, 72 L. Ed. 860. We did not intend to make any such finding. A further examination of the record fails to disclose any evidence tending to show negligence on the part of either defendant, except the happening of the accident. The case presented is not one for the application of the doctrine of res ipsa loquitur, and the cause of the accident is a matter of mere speculation and conjecture. We find no grounds for changing onr opinion formerly expressed. Louisville & N. R. Co. v. Chatters, 49 S. Ct. 329, 73 L. Ed.-, decided April 15, 1929.

Reversed.

Luckenbach Steamship Co. v. Buzynski, 31 F.2d 1015, 1929 U.S. App. LEXIS 3659, 1929 A.M.C. 737 (5th Cir. 1929).

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