Kansas City Southern Ry. Co. v. Ellzey, 275 U.S. 236 (1927)

Kansas City Southern Railway Company v. Ellzey

No. 63

Argued October 24, 25, 1927
Decided November 21, 1927
275 U.S. 236

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

1. By the doctrine of the last clear chance, a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril, had in fact a later opportunity than the plaintiff to avert an accident. But, where, as a result of the negligent operation of a railway motor car by defendant’s agent, with plaintiff’s acquiescence or encouragement, the car was derailed and plaintiff injured, their courses of conduct were not so independent that either one or the other could be said to have had in fact a later opportunity to avoid the consequence of their joint negligence, and the doctrine was therefore inapplicable. P. 241.

2. Instructions in such a case held sufficiently favorable to the plaintiff on the subject of contributory negligence. P. 242.

12 F.2d 4 reversed.

Certiorari, 271 U.S. 69, to a judgment of the circuit court of appeals which reversed a judgment entered on a verdict in the district court in favor of the railway company in an action for personal injuries brought against it by Ellzey. The jurisdiction of the district court was based on diversity of citizenship.