Indemnity Ins. Co. of North America v. Atchison, T. & S. F. Ry. Co.

With a temerity which strains the indulgence extended to the ardor of losing counsel in their petitions for rehearing, the petition asserts: “There is no evidence in the record that on December 15, 1930, the girders were started in a series of successive transports back and forth between the town of Seligman and the railroad bridge.”

There was evidence from which the jury could properly infer that the railway both contemplated and subsequently performed the complicated transports back and forth from the bridge, interrupting the hoisting of the heavy girders from one side of the bridge, across it, to the other — a transit which was hazardous to its structure and thereby to the continuity of the through and local traffic of its main line tracks, and hehce warranting the insistence of the railway’s control as .principal over the crane operator- as its agent and as a member of the crew of the train and its attendant switchman. The following is evidence that the railway so contemplated:

That the successive transports between Seligman and the bridge as contemplated, were in fact performed, the jury could properly infer from the following testimony:

The bill of exceptions settled the…