Tremont Coal & Coke Co. v. Shields

167 F. 946, 93 C.C.A. 346, 1909 U.S. App. LEXIS 4401

Opinion

ROSS, Circuit Judge

(aiter stating the facts as above). It is not our province any more than it was that of the court below to weigh the conflicting statements of the witnesses upon the question of the alleged negligence on the part of the defendant. That was for the jury to do, under appropriate instructions from the court. The company’s superintendent in his testimony, as has been seen, denied that any timbers had been requested of him, asserted that there were timbers on hand for use when needed, that the tunnel, except at the entrance thereto where timbers were placed, was in sandstone, and needed no timbers, and that he had carefully inspected it as late as 3 o’clock of the afternoon preceding the plaintiff’s injury. The testimony of the witnesses Roberts, Marquette, and Morris also tended to support the denial of the defendant’s alleged negligence. To what extent the jurors were the proper judges.

That question, lying as it does at the foundation of the case, having been taken from the jury by the court below, the judgment must be, ' and accordingly is, reversed, and the case remanded for a new trial.