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U.S. Supreme Court
Texas & Pacific Ry. Co. v. Harvey, 228 U.S. 319 (1913)
Texas & Pacific Railway Company v. Harvey
Argued March 20, 1913
Decided April 14, 1913
228 U.S. 319
In Texas, the common law rule as to risks assumed by the employee has been qualified by statute so that the employee is relieved from giving notice of defects where a person of ordinary intelligence would have continued in service with knowledge of such defect.
Ordinarily, and unless so evident that fair-minded men could not differ in regard thereto, negligence or contributory negligence is not a question of law, but of fact, to be settled by the finding of the jury. Richmond & Danville R. Co. v. Powers, 149 U. S. 43.
In this case, the court having charged that there could be no recovery if there was contributory negligence on the part of the deceased and also having specially charged that there could be no recovery if the deceased was not acting with the care of an ordinarily prudent man, there was no error.
The appellate court is not a jury, and has no power to grant a new trial. That matter rests in the sound discretion of the trial court, and, in a case of this kind, its decision cannot be disturbed unless it appears that contributory negligence was so evident that it became a question of law requiring the court to take the case from the jury.
184 F.9d 0 affirmed.
The facts, which involve the validity of a verdict against a railway company for damages for causing death of an employee, are stated in the the opinion. chanroblesvirtualawlibrary