OVERSTREET v. NORFOLK & W. RY. CO., 238 F. 565

KNAPP, Circuit Judge. On October 19, 1915, R. S. Overstreet, a hostler in the employ of defendant in error, was caught between the couplers of two locomotives, which he was presumably attempting to couple together, and so badly hurt that he died a few hours after-wards. There was no eyewitness of the accident, and how or why it happened can only be inferred from the surrounding circumstances. His administratrix brought suit under the Employers’ Liability Act, alleging that the coupler on one of the locomotives, or some part of it, was out of order, and that this was the proximate cause of Over-street’s death.

The trial court directed a verdict for defendant, and the case comes here on writ of error. We are of opinion, after painstaking study of the testimony, that enough was shown on behalf of the plaintiff to warrant submission to the jury, and it was therefore error to direct a verdict for the defendant. C., B. & Q. Ry. Co. v. United States, 220 U. S. 559, 571, 31 Sup. Ct. 612, 55 L. Ed. 582; C., R. I. & P. Ry. Co. v. Brown, 229 U. S. 317, 321, 33 Sup. Ct. 840, 57 L. Ed. 1204; Myers v. Pittsburgh Coal Co., 233 U. S. 184, 34 Sup. Ct. 559, 58 L. Ed. 906; San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U.

S. 476, 484, 36 Sup. Ct. 626, 60 L. Ed. 1110; and Atlantic City R. Co. v. Parker, 37 Sup. Ct. 69, decided by the Supreme Court December 4, 1916. As the case presented seems exceedingly close, we purposely refrain from stating the reasons for our conclusion, in order that neither party may be prejudiced, in the event of another trial, by any comments we might make upon the evidence here of record.

As to the rejected proof offered by the plaintiff, it is perhaps sufficient to remark that in a case like this the admission or exclusion of testimony, upon the objection that it is too remote, is largely within the discretion of the trial judge, and that we would not feel called upon to reverse the judgment herein on account of the ruling in question. At the same time, as the case now appears, we think that the testimony offered was competent, and should have been admitted. Texas & Pacific R. Co. v. Rosborough, 235 U. S. 429, 35 Sup. Ct. 117, 59 L. Ed. 299.

The judgment will be reversed, and the case remanded, with instructions to grant a new trial. Reversed. «&wkey;For other cases see same topic & KEY-NUMBER in ail Key-Numbered Digests & Indexes