Hewett Akers, Appellee, v. Norfolk & Western Railway Company, a Virginia Corporation, Appellant, 417 F.2d 632 (4th Cir. 1969)

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US Court of Appeals for the Fourth Circuit - 417 F.2d 632 (4th Cir. 1969) October 23, 1969

Slaven, Staker & Smith, Williamson, W.Va., on the brief for appellant.

William H. DeParcq, Jerome T. Anderson, O. C. Adamson, II, Minneapolis, Minn., and Frank Eaton, Huntington, W.Va., on the brief, for appellee.

Before SOBELOFF, BRYAN and WINTER, Circuit Judges.


This is a suit for personal injuries brought by a railroad employee under the Federal Employers' Liability Act, in which he recovered a judgment. Examination of the record and the briefs discloses that the railroad's appeal is utterly without merit.

The appellant's only assertion of error is the reference in the charge given by the District Judge to the jury, to a possible preexisting injury to the plaintiff before the occurrence of the injury which is alleged as the basis of the defendant's liability. The Judge was at pains to protect the defendant against any award of damages "for any condition existing prior to the alleged injury for which [the railroad] was not in any way responsible in causing or aggravating." While the defendant objected to this charge at the trial, we note it was the defendant who first injected the issue of preexisting injury into the evidence. Moreover, the Judge's charge was not only a correct statement of the law, but it was highly favorable to the defendant, and in no event could it have been prejudicial.

Accordingly, the judgment of the District Court is