24 F. 847 | U.S. Cir. Ct. | 1885
At the conclusion of plaintiff’s testimony in this case on yesterday, the counsel for the defendant moved the court to instruct the jury to find a verdict for the defendant, on the testimony introduced by the plaintiff, on the ground that, upon the case made by the plaintiff’s evidence, all taken as true, the defendant is not liable; that, taking the evidence in its strongest light against the defendant, the plaintiff presented no case upon which she is entitled to recover. In such eases a motion of this kind is the proper practice in this court. The application is a substitute for a motion for non-suit in the state courts. This court never grants a nonsuit; the proper motion being to instruct the jury to find a verdict for the defendant. This case, like many others of a somewhat similar character that I have had occasion to try, is one that necessarily excites sympathy in favor of the plaintiff. We are bound, however, to be governed by the rules of law, and the legal rights of the parties. On an examination of the authorities presented by the counsel last niglit, and in view of numerous others that I have before had occasion to examine, I am satisfied that this is not a case in which the plaintiff is entitled to recover. All of the numerous cases cited by plaintiff’s counsel have other features that distinguish them from this case and cases like it.
If the accident could be regarded as the result of the carelessness of George Dubourdieu, the latter was a fellow-servant, and there is no liability on that ground. Buckley v. Gould & C. S. Min. Co. 8 Sawy. 395; S. C. 14 Fed. Rep. 833. But deceased had equal authority with George Dubourdieu, and he himself was consulted, and the negligence was as much his owm as of George Dubourdieu. More than that, at the moment when the accident happened the deceased was not actually engaged in doing anything relating to that matter. His duty at the time of the accident did not require him to be in the position of danger at all. He had performed the duty of removing the post from the place, and put it out of the way, and he was at the time not engaged in the performance of any duty connected with the work. Having a little leisure, while the other workmen ivere clearing out the place to put in the other timbers, lie sat down to rest himself, and deliberately sat directly under the shattered roof. Knowing its condition, he voluntarily selected that place for a seat upon which to rest himself. He was doing nothing at the time. There was, at that time, no occasion at all for him to sit or be at the point where the accident occurred. lie assumed voluntarily, for his own convenience and comfort, the responsibility of selecting that particular place in which to sit, and ho sat immediately under the shattered rock. The space shattered was only four or five feet wide. If he had selected a place in which to sit two feet further out, he would have been clear of danger, and would have escaped. After his attention had been called to the condition of the roof, and having discussed the question as to whether it was safe to take this post out, and at a point of time when he had nothing at all to do with the work, — no duty to perform in connection with it, — he deliberately, of his own accord, sat down directly under the dangerous place; whereas, if he had selected a place two feet or more further out he would have been out of danger. That is an act of his own, and the company cannot be held responsible for the consequences resulting from it. Knowing all the circumstances of the case, he performed that act for his owm comfort, and while sitting at the point
The circuit "judge then directed the jury to find a verdict for defendant, which was done.