Ducktown Sulphur, Copper & Iron Co. v. Fortner , 228 F. 191 ( 1915 )

DENISON, Circuit Judge.

[1, 2] Error to reverse judgment for plaintiff for a personal injury. The only substantial question is whether there was any case for the jury. The company’s apparatus and rule, if used and followed, provided an efficient safeguard against such an accident as did happen; but a fellow servant or plaintiff, or both, disregarded this rule. Additional apparatus, easily installed, or additional rules, would have supplied a further safeguard and would have prevented such an accident, unless the operator’s carelessness had also increased to an improbable point. Lacking exception thereto, it must-be presumed that the charge correctly defined the duty of the company to provide reasonably safe, but not the safest, apparatus and rules of operation,- and made clear how far, if at all, plaintiff might be exonerated from contributory negligence and from having assumed that risk which came from the lack of the safer methods.

We cannot say that there was nothing, substantial for the jury, on these issues.