General
SOUTHERN RAILWAY COMPANY, Plaintiff in Error, v. J. H. GRIMES, Administrator of Lowe McNabb, Defendant in Error
5 F.2d 1022·United States Court of Appeals for the Sixth Circuit·1925
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Opinion
SOUTHERN RAILWAY COMPANY, Plaintiff in Error, v. J. H. GRIMES, Administrator of Lowe McNabb, Defendant in Error.
(Circuit Court of Appeals, Sixth Circuit.
June 10, 1925.)
No. 4328.
In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge.
Charles H. Smith, of Knoxville, Tenn., for plaintiff in error.
H. G. Fowler, of Knoxville, Tenn. (Fowler & Fowler, of Knoxville, Tenn., on the brief), for defendant in error.
Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.
[MAJORITY — PER CURIAM.]
PER CURIAM.
We are not able to say that there was no evidence from which the jury had the right to infer that the engineer should, in the exercise of due care, have given some warning to McNabb. We observe that at what may have been a distance of 100 or 150 feet and over a time interval of two or three seconds it was necessarily apparent to the engineer that all the others of the section gang, including the one 3 feet from McNabb, had jumped back out of the way, but that McNabb continued to pay no attention and was apparently oblivious, and was therefore apparently in peril. While the time involved was very short, Mc-Nabb had to move only a few inches to be safe, and it may be that there was time enough for a whistle blast to “galvanize him into action.” The circumstances are unique. There is no controversy about the general legal rules. Applying them to these particular tacts, we cannot reverse the judgment on the sole ground now urged, and it is affirmed.