White v. Pennsylvania R.

183 F. 611, 1910 U.S. App. LEXIS 5752

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: December 9, 1910
• Docket: No. 782
• Status: Published

Opinion

J. B. McPHERSON, District Judge.

This is a close case, but I am not wholly satisfied that the plaintiff received the full benefit of his legal rights. I lay aside the defense based upon his membership in the relief association, as the company evidently does not rely upon it; but I incline to think that the testimony, slight as it was, had weight enough to require the duty and the fact of reasonable inspection to be submitted to the jury. At all events, the question is doubtful, and I am unwilling to deprive the plaintiff of a possible right.

Moreover — although the plaintiff naturally does not dwell upon this consideration — it may be that another question did not receive proper attention, namely, whether the admitted lengthening of the rod was due to the plaintiff’s own use of the brake when he was hurt, or had previously existed. This has an obvious importance, and (as far as I can now see) is necessarily a question of fact.

Equitably the plaintiff’s case may present a'less favorable aspect, hut the equities may perhaps be adjusted without another trial.

The motion is granted.