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MESSER v. L. B. FOSTER COMPANY

No. 16907.

254 F.2d 412 (1958)

E. C. MESSER and Texas Employers' Insurance Association, Appellants, v. L. B. FOSTER COMPANY, Inc., et al., Appellees.

United States Court of Appeals Fifth Circuit.

April 17, 1958.

Attorney(s) appearing for the Case

Edward L. Poole, Merchant & Fitzjarrald, Amarillo, Tex., for appellant, E. C. Messer.

R. A. Wilson, Underwood, Wilson, Sutton, Heare & Boyce, Amarillo, Tex., for appellant Texas Employers' Ins. Ass'n.

S. Thomas Morris, Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Tex., for appellee.

Before HUTCHESON, Chief Judge, and BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal from a judgment on a general verdict for the defendant presents the narrow question whether the Court erred in not giving an explanatory instruction on concurrent negligence of the defendant's servant and the co-employee of the plaintiff. The case is the now familiar one in which the plaintiff (Messer) injured while in the course of employment for his employer (Jones) sues a so-called third party (Foster) for the negligence...

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