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Stilwell v. General Railway Services12/7/2004
were not for use on interchange. For this point defendant merely asserts that plaintiff immediately recognized the danger, thus relieving defendant of this duty. The contract was admitted into evidence and was never changed to reflect use as a caboose for some purpose other than an interchange. Furthermore, defendant acknowledges the caboose was being so used at the time of the accident. This judicial admission supports the requirement that defendant had to warn the Government of the consequences of deviating from the type of chair specified. In light of our ruling that the issue of contributory negligence is an issue for the jury in this case, defendant cannot rely on plaintiff's initial belief that the chair may be dangerous to avoid a duty defendant had prior to delivery.
For the reasons set forth in this opinion, we reverse the order of the trial court directing a verdict in favor of defendant and order a new trial.
New trial.
Judges McGEE and ELMORE concur.
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