John Wesley Beaty, by His Next Friend, Lawrence W. Beaty, Jr., Appellant, v. Seaboard Air Line Railroad Company, Appellee, 400 F.2d 96 (4th Cir. 1968)

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U.S. Court of Appeals for the Fourth Circuit - 400 F.2d 96 (4th Cir. 1968) 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:


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.

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.

Vacated and remanded.