Leroy Warren Kinchen, and North-West Insurance Co., Plaintiff-Intervenor-Appellant v. Missouri Pacific Railroad Company

I respectfully dissent insofar as the majority holds that the plaintiff Kinchen was contributorily negligent as a matter of law. With great respect for the able trial judge and for my esteemed colleagues of the majority, the upholding of the directed verdict and the depriving of the jury of its function to determine this factual question are in contravention of the principles of Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969), quoted but ignored by the majority.

In substance, the majority accepts the facts relied upon by Kinchen: The train (a locomotive and four carbon-black cars) backed…