November 25, 1925.
In Error to the District Court of the United States for the Eastern District of South Carolina, at Florence; Ernest F. Cochran, Judge.
F.L. Willcox, of Florence, S.C. (A.L. Hardee, of Florence, S.C., on the brief), for plaintiff in error.
James R. Coggeshall, of Darlington, S.C., and M.L. Smith, of Camden, S.C., for defendant in error.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
A statement of the facts of this case and a discussion of the applicable law will be found in our former opinion, in which we reversed a judgment for the defendant below. Byrd v. Atlantic Coast Line, 2 F.2d 672. We then held that the learned judge below should not have instructed a verdict in favor of the defendant. We thought that whether the plaintiff's decedent was guilty of the gross or willful negligence necessary, under the somewhat peculiar statute of South Carolina, to defeat recovery, depended upon whether he knew the defendant maintained and operated a second main track over the crossing at which he was killed, and we found upon the evidence presented that whether he did or did not raised a jury question.
At the retrial, that issue was left to the 12 men, and their verdict was against the defendant. The latter now contends that the new evidence presented showed that the deceased must have been so familiar with the crossing that no reasonable man could doubt he knew of the existence of the second main track. We do not think this contention can be sustained. Upon the testimony in this record, men might fairly differ as to whether he did or did not.