Erie R. v. White , 109 C.C.A. 326 ( 1911 )

DENISON, District Judge.

1. The petition for rehearing points out that, while in the foregoing opinion we declined to consider the questions raised regarding the abrogation of the railroad rule, and so declined because the court charged that White’s act in going between the cars was negligence, the record shows the charge to have been only that the act was “dangerous,” and not that it was “negligent.” This refers to one sentence of the charge; but the next sentence positively instructs that, if White’s act in going between the cars was the proximate cause of the injury, he cannot recover. Whether his action be characterized as “negligent” or “dangerous” is of no importance, excepting as leading to the stated conclusion that it would, if the causal relation existed, absolutely defeat recovery.

2. The petition complains of the refusal, in the foregoing opinion, to consider the complaint against the charge because it did not submit to the jury the question whether the danger from this block and the danger from a proper -block were of the same class; and it points out that an exception, taken after the charge, was distinctly put upon the ground that one paragraph of the charge should have been modified in this particular. We pass the question whether such an exception, under the circumstances of this case and without any appropriate precedent request, would save the point; but, however that may be, we reached, and in our opinion expressed, the conclusion that these two blocks did not present the same class of danger, and this conclusion disposes of the point sought to be urged.

3. The other contentions of the petition, we think, were sufficiently covered by the opinion.

The petition for rehearing is denied.