United States of America, and Union Pacific Railroad Company v. Isaac Marshall

The action below was for personal injuries based on the claimed negligence of the United States and the Union Pacific Railroad Company, hereafter referrsd to as the Railroad. Jurisdiction as to the United States was based on the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 (b) and 2674. Jurisdiction as to the Railroad was based on diversity of citizenship, 28 U.S.C.A. § 1332 . After a trial, before the court without ^a jury, a joint and several judgment was entered against the two defendants for $75,000.-00 general damages, $3,705.75 special damages and costs. Within time, each defendant has appealed. The appeals raise the questions of the sufficiency of the evidence to support the court’s finding of concurrent negligence on the part of the Railroad and the United States, and whether the United States, if negligent, is relieved from liability by the intervening negligence if any, on the part of the Railroad.

Neither the United States nor the Railroad attacks the amount of the award, neither asserts contributory negligence on the part of Marshall, and neither asserts error in the admission or rejection of evidence. When questioned by this court during argument, the United States…