Woodruff v. Yazoo & M. V. R.

Fifth Circuit

Woodruff v. Yazoo & M. V. R.

222 F. 29, 137 C.C.A. 567, 1915 U.S. App. LEXIS 1419

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 7, 1915

DocketNo. 2740

StatusPublished

Cited by3 cases

This text of 222 F. 29 (Woodruff v. Yazoo & M. V. R.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Woodruff v. Yazoo & M. V. R., 222 F. 29, 137 C.C.A. 567, 1915 U.S. App. LEXIS 1419 (5th Cir. 1915).

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Opinions

MAXEY, District Judge

(after stating the facts as above). With the exception of the testimony of Charles Linstrum, master mechanic of the defendant in error at Vicksburg, the essential facts of the present case are the same as those involved on the former hearing. With-, out expressing an opinion of the force and effect of Linstrum’s testimony, it may with propriety be said that it did not weaken, but tended rather to strengthen, the case made by the plaintiff in error. Upon the former hearing this court, after referring to the facts, used the following language:

“It was open to the jury to infer from this evidence, recited from the record, that the exjJlosion of the indicator tube was due to lack of sufficient ten[30]*30sile strength to resist the steam pressure the defendant knew it was required to encounter in the ordinary daily operation of the engine, namely 150 pounds, since it is shown to have exploded under a pressure of hut 145 pounds; that it should have had a tensile strength of 300 pounds, according to manufacturers’ standard, but did not, in fact, have one-half that amount; that the defendant, having furnished the tube to intestate for the purpose for which it was used, must either have known of its insufficiency in this respect, if the tubes were tested by it, or have been in negligent ignorance of it, if no test was made, since its duty would have been to make a test before furnishing it to the intestate for use on his engine. The issue of the negligence or the absence of negligence in this respect was an issue of fact, which should have been submitted to the jury. It is clear that the evidence in the record was of a character that required the submission to the jury of the issue of assumption of risk on intestate’s part of the insufficiency of the tube in tensile strength, if there was any evidence of such assumption on his part. The sufficient and insufficient tubes in this respect were of the same appearance, and a test was required to tell of the insufficiency. The intestate had no means of making the test, and had the right to assume the tensile sufficiency of the tube that was furnished by his employer, until he acquired knowledge to the contrary. The record does not show such knowledge on his part. His knowledge of the likelihood of an explosion of the tubes, even when of sufficient tensile strength, would not be an assumption of the risk of an explosion of a tube which was of insufficient tensile strength, of which fact he was unaware. For these reasons, we think the case should have been submitted to the jury, and that the court below erred in directing a verdict for the defendant.”

The foregoing ruling of the court must stand as the law of the case upon the present hearing, since it is well settled “that whatever has been decided here on one writ of error cannot be re-examined on a subsequent writ brought in the same suit.” Clark v. Keith, 106 U. S. 465, 1 Sup. Ct. 568, 27 L. Ed. 302; Supervisors v. Kennicott, 94 U. S. 498, 24 L. Ed. 260; Bell v. Arledge, 219 Fed. (C. C. A. 5th Cir.) 675, 135 C. C. A. 347, citing numerous authorities.

It was intimated by counsel that the peremptory instruction to the jury, on the second trial, was based upon the case of Seaboard Air Fine Railway Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, decided subsequent to the first hearing of the present case in this court. Upon a careful examination of the opinion in the Horton Case, we are unable to discover any conflict between it and the opinion rendered by Judge Grubb as the organ of this court upon the former hearing. The views of the two court's are in complete harmony, so far as they affect the issues involved in the present controversy.

We are therefore of the opinion that the judgment should be reversed, and the cause remanded, with instructions to the trial court to submit the issues h> the jury in conformity with the views expressed by this court on the first writ of error.

Ordered accordingly.

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MAXEY, District Judge

(after stating the facts as above). With the exception of the testimony of Charles Linstrum, master mechanic of the defendant in error at Vicksburg, the essential facts of the present case are the same as those involved on the former hearing. With-, out expressing an opinion of the force and effect of Linstrum’s testimony, it may with propriety be said that it did not weaken, but tended rather to strengthen, the case made by the plaintiff in error. Upon the former hearing this court, after referring to the facts, used the following language:

“It was open to the jury to infer from this evidence, recited from the record, that the exjJlosion of the indicator tube was due to lack of sufficient ten[30]*30sile strength to resist the steam pressure the defendant knew it was required to encounter in the ordinary daily operation of the engine, namely 150 pounds, since it is shown to have exploded under a pressure of hut 145 pounds; that it should have had a tensile strength of 300 pounds, according to manufacturers’ standard, but did not, in fact, have one-half that amount; that the defendant, having furnished the tube to intestate for the purpose for which it was used, must either have known of its insufficiency in this respect, if the tubes were tested by it, or have been in negligent ignorance of it, if no test was made, since its duty would have been to make a test before furnishing it to the intestate for use on his engine. The issue of the negligence or the absence of negligence in this respect was an issue of fact, which should have been submitted to the jury. It is clear that the evidence in the record was of a character that required the submission to the jury of the issue of assumption of risk on intestate’s part of the insufficiency of the tube in tensile strength, if there was any evidence of such assumption on his part. The sufficient and insufficient tubes in this respect were of the same appearance, and a test was required to tell of the insufficiency. The intestate had no means of making the test, and had the right to assume the tensile sufficiency of the tube that was furnished by his employer, until he acquired knowledge to the contrary. The record does not show such knowledge on his part. His knowledge of the likelihood of an explosion of the tubes, even when of sufficient tensile strength, would not be an assumption of the risk of an explosion of a tube which was of insufficient tensile strength, of which fact he was unaware. For these reasons, we think the case should have been submitted to the jury, and that the court below erred in directing a verdict for the defendant.”

The foregoing ruling of the court must stand as the law of the case upon the present hearing, since it is well settled “that whatever has been decided here on one writ of error cannot be re-examined on a subsequent writ brought in the same suit.” Clark v. Keith, 106 U. S. 465, 1 Sup. Ct. 568, 27 L. Ed. 302; Supervisors v. Kennicott, 94 U. S. 498, 24 L. Ed. 260; Bell v. Arledge, 219 Fed. (C. C. A. 5th Cir.) 675, 135 C. C. A. 347, citing numerous authorities.

It was intimated by counsel that the peremptory instruction to the jury, on the second trial, was based upon the case of Seaboard Air Fine Railway Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, decided subsequent to the first hearing of the present case in this court. Upon a careful examination of the opinion in the Horton Case, we are unable to discover any conflict between it and the opinion rendered by Judge Grubb as the organ of this court upon the former hearing. The views of the two court's are in complete harmony, so far as they affect the issues involved in the present controversy.

We are therefore of the opinion that the judgment should be reversed, and the cause remanded, with instructions to the trial court to submit the issues h> the jury in conformity with the views expressed by this court on the first writ of error.

Ordered accordingly.

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222 F. 29, 137 C.C.A. 567, 1915 U.S. App. LEXIS 1419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodruff-v-yazoo-m-v-r-ca5-1915.

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