Texas & P. Ry. Co. v. Rosborough

209 F. 205, 126 C.C.A. 299, 1913 U.S. App. LEXIS 1777

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 9, 1913
• Docket: No. 2,520
• Status: Published

Opinion

PER CURIAM.

[1] Under the issues presented by the fifth and seventh paragraphs of the first amended answer of the Texas & Pacific Railway Company, the evidence of Edwards set forth and com/plained- of in the first assignment of error was admissible on behalf ^of the plaintiff. Its admission over objection after plaintiff “had rested,” and after the defending railway company had offered perhaps all of its evidence, was within the discretion of the trial judg'e. Ency. PL & Pr. vol. 8, p. 132.

[2] Under the issues made by the pleadings, and considering the evidence offered by the defendant more or less tending to show that its locomotives were all equipped with a standard spark arrester, kept in order and well handled, the evidence of Edwards complained of was not irrelevant nor iminaterial. That it was somewhat remote goes to its effept. Because the evidence of the deféndant showed that the fire was started by one of three certain engines, Nos. 359, 140, and 202, and Edwards’ evidence related to the action and the handling of another and different engine two days after the fire, did not warrant striking the evidence of Edwards from the record.

All issues in the case affecting the railway company’s liability were for the jury, and the jury was not bound to accept the explanation tendered by the evidence of the railway company as to which particular engine started the fire and how that engine was equipped and handled.

None of the other assignments of error were much insisted upon, and from examination we find none of them well taken.

The judgment of the District Court is affirmed.