Ernest E. Frankenberg v. Southern Railway Company

McCREE, Circuit Judge.

Defendant Southern Railway Company appeals from a judgment entered on a jury verdict of $10,000 in a personal injury action. The sole issue is whether plaintiff-appellee, as a matter of law, was barred from recovery by contributory negligence. Federal jurisdiction exists because of diversity of citizenship, and Tennessee law applies.

The accident out of which this litigation arises occurred when appellee Fran-kenberg’s automobile collided with a train at a railroad crossing in Bulls Gap, Tennessee, at about 2 a. m. on November 24, 1967. Approximately a half hour before,…