470 F2d 990 Bayliff v. Atchison Topeka and Santa Fe Railway Company

470 F.2d 990

Bob B. BAYLIFF, Plaintiff-Appellant,
v.
The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.

No. 72-1635.

United States Court of Appeals,
Fifth Circuit.

Dec. 14, 1972.
Rehearing Denied Jan. 4, 1973.

V. G. Kolius, Amarillo, Tex., for plaintiff-appellant.

A. B. Hankins, Michael C. Musick, Amarillo, Tex., for defendant-appellee.

Before MORGAN, CLARK and INGRAHAM, Circuit Judges.

PER CURIAM:

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1

Appellant Bayliff was injured when a car in which he was riding was struck by one of appellee's trains at a crossing on the outskirts of Amarillo, Texas. In order for Bayliff to recover against the railroad he must, under Texas law, establish that the crossing where the accident occurred is "extra hazardous". See Fitch v. Missouri-Kansas-Texas Transportation Co., 5 Cir. 1971, 441 F.2d 1.

2

The only point raised in this appeal is whether, on the issue of "extra hazardous crossing", there was "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions". Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365. This case was initially allowed to go to the jury, resulting in a verdict for plaintiff Bayliff in the amount of $20,000. The district court then granted judgment notwithstanding the verdict for the railroad, holding that the crossing had not been shown to be "extra hazardous". It is from this ruling that Bayliff appeals.

3

After a close reading of the sparse testimony presented on plaintiff's behalf, and after viewing the exhibits in the record, pictures of the accident scene, we find that the district court did not err in holding that the crossing had not been shown "extra hazardous" and the entry of the judgment notwithstanding the verdict for the railroad is

4

Affirmed.