400 F2d 96 Beaty v. Seaboard Air Line Railroad Company

400 F.2d 96

John Wesley BEATY, by his Next Friend, Lawrence W. Beaty, Jr., Appellant,
v.
SEABOARD AIR LINE RAILROAD COMPANY, Appellee.

No. 12254.

United States Court of Appeals Fourth Circuit.

Argued June 21, 1968.

Decided July 15, 1968.

Harry C. Hewson, Charlotte, N. C. (Jones, Hewson & Woolard, and John E. McDonald, Jr., Charlotte, N. C., on brief), for appellant.

Thomas Ashe Lockhart, Charlotte, N. C. (John S. Cansler, and Cansler & Lockhart, Charlotte, N. C., on brief), for appellee.

Before SOBELOFF, BRYAN and BUTZNER, Circuit Judges.

PER CURIAM:

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1

Attempting to field a fly ball, John Wesley Beaty, 12 years old, was struck by a locomotive. At the conclusion of the plaintiff's evidence, the district judge granted Seaboard's motion for a directed verdict.

2

After review of the evidence in the light most favorable to the plaintiff, we conclude that the questions of negligence, contributory negligence, and whether the engineer had a last clear chance to avoid the accident, were for the jury. Higgins v. Thompson, 391 F.2d 246 (4th Cir. 1968). The district court's judgment is vacated, and the case is remanded for a new trial.

3

Vacated and remanded.