Opinion
No. 4786.
April 23, 1929.
Appeal from the District Court of the United States for the Southern District of Texas; J.C. Hutcheson, Jr., Judge.
J. Newton Rayzor, of Houston, Tex. (Royston Rayzor, of Houston, Tex., on the brief), for appellants.
W.E. Price, of Galveston, Tex. (D.B. MacInerney, of Galveston, Tex., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
On a former hearing we reversed a judgment of the District Court in favor of appellee. 19 F.2d 871. The case is fully covered by our opinion above referred to, and need not be restated. From an inadvertent and unnecessary statement that the accident might have been caused by the negligence of a fellow servant, the Supreme Court reached the conclusion that we had found there was evidence that the accident was so caused, and reversed our decision. 277 U.S. 226, 48 S. Ct. 440, 72 L. Ed. 860. We did not intend to make any such finding. A further examination of the record fails to disclose any evidence tending to show negligence on the part of either defendant, except the happening of the accident. The case presented is not one for the application of the doctrine of res ipsa loquitur, and the cause of the accident is a matter of mere speculation and conjecture. We find no grounds for changing our opinion formerly expressed. Louisville N.R. Co. v. Chatters, 49 S. Ct. 329, 73 L. Ed. ___, decided April 15, 1929.
Reversed.