
    POWELL et al. v. WESTERMANN.
    No. 8463.
    Circuit Court of Appeals, Fifth Circuit.
    Jan. 25, 1938.
    Joseph F. McPherson, of Miami, Fla., for appellants.
    John W. Prunty and Glenn C. Mincer, both of Miami, Fla., for appellee.
    Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.
   HOLMES, Circuit Judge.

By the verdict of a jury, in an action at law, appellee was awarded damages for the wrongful death of her husband, who was killed in a collision at a railroad crossing. This appeal comes from a judgment upon that' verdict, and error is assigned principally to the action of the court in refusing to instruct the jury peremptorily to find for appellant.

The accident occurred about 10 o’clock in the morning on February 20, 1936, at the intersection of the Seaboard’s tracks and one of the principal avenues in Miami, Florida. The appellants were backing a heavy passenger train across the avenue. It was 717 feet long and consisted of an engine, four Pullmans, one diner, two coaches, and a mail car.

Appellee claims that the train was being operated by a skeleton crew of one man, with an engine crew of two; but the material fact here is not by whom, but how, the train was operated. So we put this and several other alleged grounds of negligence aside, and state at once the only basis upon which we think the verdict and judgment should stand.

There was substantial evidence to warrant the jury in finding that the appellant unnecessarily backed this heavy train over a much-traveled city street at a speed of twenty-five or thirty miles an hour, and that this was a highly dangerous thing to do, which constituted negligence, directly and proximately causing the injury. The fact that the deceased was guilty of contributory negligence does not entirely defeat recovery.

We find no reversible error in the record, and the judgment is affirmed.  