W. J. Hopkins v. C. E. Whalen Company, Inc., a Corporation

BUTZNER, Circuit Judge:

The C. E. Whalen Company appeals from the entry of judgment in favor of W. H. Hopkins for personal injuries. Whalen’s principal assignment of error is the trial judge’s ruling that Hopkins was not contributorily negligent as a matter of law. We reverse because we believe this issue should have been submitted to the jury.

In the course of constructing a railroad, Whalen blasted rock into a creek near a highway. The creek, swollen by heavy rains and blocked by rubble from the explosions, flooded the road. Hopkins arrived at this section of the highway after dark. He…