FLORIDA EAST COAST RY. CO. v. CLARK

FLORIDA EAST COAST RY. CO. v. CLARK. No. 5837. Circuit Court of Appeals, Fifth Circuit. July 12, 1930. Robert H. Anderson, of Jacksonville, Fla., for appellant. John E. Teate and George C. Bedell, both of Jacksonville, Fla. (Chester Bedell, of Jacksonville, Fla., on the brief), for appellee. Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge. [MAJORITY — FOSTER, Circuit Judge. .] FOSTER, Circuit Judge. . Appellee brought suit under the provisions of the Federal Employers’ liability Act (45 USCA §§ 51-59) and recovered a judgment for damages for the death of her husband, a locomotive engineer employed by appellant, who was killed in an accident which derailed his engine. The only error urged is to the overruling of a motion for a directed verdict. Negligence alleged was the use of an over-worn and insecurely fastened rail on a curve. Although there was considerable conflict, there was evidence tending to show the condition of the rail as alleged, and that because it was insecurely fastened, when a train took the curve at the usual rate of speed, there was enough play to allow the rail to cant and cause the track to spread sufficiently to derail the engine. We think there was sufficient evidence to go to the jury and that it was not error to refuse a directed verdict. The record presents no reversible error. Affirmed.