11 F.2d 913 | 2d Cir. | 1926
Lead Opinion
(after stating the facts as above). The proposed exit in which the decedent was working was not wholly completed, but it was entirely capable of the use for which it was intended; that is to say, as an emergency exit. There was to be no formal opening of it to the public, who were indeed not to use it at all, except on possible occasions, when the usual exits, remote from this, should become inaccessible. It was therefore as much in use as it ever was to be, as much so as when the railings were completed and the steps widened at the top, which were the only substantial changes that must be made to complete the wofk. To clear the landing or floor of the upper chamber of the rubbish which had accumulated during construction was as much to clear one of the defendant’s exits as though it had incumbered a regular passageway at a station. Therefore we think the case's inapplicable which hold that the manufacture, repair, or adjustment of a tool or apparatus is not interstate commerce, when it has been removed from employment or has not yet been delivered to the carrier. Shanks v. D., L. & W. R. R. Co., 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Minn., etc., R. R. v. Winters, 242 U. S. 353, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Industrial Commission v. Davis, 259 U. S. 182, 42 S. Ct. 489, 66 L. Ed. 888. Equally inapplicable
Our own decision in Hudson & Manhattan Co. v. Iorio, 239 F. 855, 152 C. C. A. 641, does not rule the case at bar. The rails being moved were to be held in reserve against possible need. Now it is true that an emergency exit is in some sense also held in reserve, but no more than an unoccupied siding, an extra ticket window, or an empty freighthouse. Parts of a railway’s trackage and structures do not, as we understand it, fall out of interstate commerce whenever they are not being used, at least not when the only possible use of them must be interstate. As well might one say that- the main tracks themselves were in use only when trains passed over them.
There is, besides, another ground on which jurisdiction may depend. Although the exhaust fan had not been running pending the changes, the drain pipes had been shifted and were carrying off water. The shaft was therefore a part of the necessary equipment for the main tracks, which must be kept dry. While it was not, indeed, essential to their operation that the chamber should be cleared of rubbish, it was a reasonable requirement, sinee access to them was made easier. It would be a crabbed doctrine to deny any relation between the drain pipes and the structures through which they ran.
We think that there was evidence to go to the jury upon whether the decedent died by an electric shock. Judge Hough and I do not in fact believe that any of the coil of wire at the bottom of the chamber was live, and a judge would have been justified in saying so to the jury. It seems to us pretty clear that the main lead had been cut, and Latwis’ testimony as to a shock was badly impeached by his earlier statements. Moreover, Belske swore to no hanging wire leading into, the coil, without which we cannot see how there could have been any connection with the current,, even if the old lead had not ■ been disconnected at the tap box. That lead came up a separate leg of the shaft from the new temporary wiring, which under the only evidence was eight feet away. Besides, we cannot see how the old lead could get current from the new, even had they touched.
Nevertheless, it is true that, if the old lead was disconnected only after the accident, and -if it hung down and into the coil, there would have been a current upon making a circuit through the iron sheet, and a deadly current according to one witness for the defendant. The coincidence of the decedent’s death with the touching of the wire, which was certainly for the jury, and the original assumption by all present that he had received a shock, were of course impressive, and are impressive still. The examination of the coroner’s physician hardly makes against it at all, for he was most perfunctory. We need not say whether without Latwis there would have been a ease, and we do not, because the whole evidence may be quite different another time; but we do say that his credibility was for the jury, and that with his testimony in the ease an issue arose of which the court could not dispose. It is to he remembered that the two men who swore that the old lead had been cut at the tap box were still in the defendant’s employ, and one was responsible for that duty. It was, of course, not impossible that, had he neglected it before, he might have cut off the lead within the time at his disposal before the other employées saw it. As indicated already, the ease is one which the trial judge would have been justified in taking strongly in hand, but in the end the jury alone could answer the issue.
The trial judge set aside the verdict, and then directed a verdict of his own, upon which he entered judgment. These last two acts he had no power to do. Slocum v. N. Y. Life Ins. Co., 228 U. S. 376, 33 S. Ct. 523, 57 L. Ed. 879,. Ann. Cas. 1914D, 1029. His only lawful conclusion upon setting aside the verdict was to set the cause down for a new trial. While his action in entering judgment is of course before us, we can do no more than to reverse it and his directed verdict, and thereupon to conclude as he should have concluded, by directing a, new trial. Had he let the verdict stand and directed judgment in spite of it, we might perhaps have reversed the judgment and entered the original judgment upon the verdict, which in that ease would have stood throughout. Hoffman v. American Mills Co: (C. C. A.) 288 F. 768. Had his judgment of nonsuit been right, we might perhaps have affirmed it, though he had set aside the verdict.
The cases relied on by the plaintiff are not in point. In these the plaintiff had got judgment on a verdict in the trial court, which the Circuit Court of Appeals had reversed. The Supreme Court, reversing the Circuit Court of Appeals, re-entered the original judgment on the verdict. But the Circuit Court of Appeals has no discretionary power over verdicts, and its action in setting aside the verdict was only an incident to its power to reverse the judgment. The Supreme Court could therefore review its whole action, and restore the case to the status quo. So could we, if we had power to review the action of the trial court in setting aside the verdict.
Judgment reversed; new trial ordered.
Concurrence Opinion
(concurring). I concur in Judge HAND’S views that the deceased was engaged in interstate commerce, and that whether or not he died as a result of electric shock was a jury question. In view of the later utterances of the Supreme Court, our decision in Hudson & Manhattan Co. v. Iorio, 239 F. 855, 152 C. C. A. 641, now relied upon by the defendant in error, is of doubtful authority. This railroad was engaged exclusively in interstate commerce, and what the deceased did was a part of that commerce. The particular work he was doing, as set forth in the prevailing opinion, engaged him in interstate commerce.
A jury could hardly reach any other conclusion but that the deceased died as a result of an -electric shock. He was carrying a piece of sheet iron, and tried to lower it through the ventilating leg. 'While doing so, he cried out, fell over, and died at once. The bottom of the sheet iron struck a live wire uninsulated, and this had sufficient current to kill him. These outstanding facts, and other surrounding circumstances as stated in the prevailing opinion, satisfied one jury, and undoubtedly will another, that the deceased died as a result of an electric shock.
The judgment dismissing the action of the plaintiff in error should be reversed, and the order of reversal should provide that the judgment entered on the verdict of the jury stand. At the .trial, a motion for a nonsuit was made, pursuant to the New York practice, and denied. The defendant in error offered its proof, and at the end of the entire case a motion for the direction of a verdict in favor of the defendant in error was denied. The case was submitted to the jury, and a verdict rendered for the plaintiff in error. Judgment was entered on the verdict. Neither after the rendition of the verdict, nor after the entry of the judgment, does the record disclose any motion made to set aside the verdict. The trial judge, in his opinion rendered nearly three months after the entry of judgment, said:
“At the close of the trial, a motion was made by the defendant to set aside the verdict, which had been rendered by a jury in favor of the plaintiff for the sum of $21,000. The motion- was denied. Thereafter the defendant requested that the court take the matter under advisement further, in order that the testimony might be written out and a brief submitted in behalf of the defendant, with an opportunity to plaintiff to submit a brief, if she so desired.”
He thereupon reached the conclusion that the intestate was not engaged in interstate commerce, set aside the verdict, and entered judgment for the defendant. This resulted in vacating the judgment entered upon the verdict. It was error to conclude that the deceased was not engaged in interstate commerce. The question was one of law, and, although it was submitted to the jury as a question of fact, the plaintiff was and is entitled to. a ruling that the deceased .was engaged in interstate commerce as a matter of law.
The order entered on this decision recites “That the verdict of the jury in favor of the plaintiff, and the judgment entered there
This erroneous ruling should be corrected by reinstatement of the verdict — not merely by reversing the order and directing a new trial. It is argued that this may not be done under the principle announced in Slocum v. N. Y. Life Ins. Co., 228 U. S. 376, 33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029. The Seventh Amendment of the Constitution, providing that “no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law,” is no bar to such procedure. What the trial judge did, although the order recites other things, was to direct a verdict for the defendant. He reserved no right to nonsuit the plaintiff in error or to direct a verdict. He denied these motions, took the verdict of the jury, and then denied the motion to set it aside and entered judgment. There was no reservation of the motion for nonsuit at any time during the course of the trial.
Since the judgment is directed for the defendant in error, the question of the weight of the evidence is not here. No complaint is made of errors in the acceptance or rejection of evidence or the charge. The procedure leading up to the court’s reconsideration of the case is most unusual. Prom all that appears in this record, the court considered the application of the defendant in error without formal motion or notice to the plaintiff.
In the Slocum Case, a general verdict for the plaintiff was returned, and a judgment entered. The Circuit Court of Appeals reversed the judgment, with a direction to sustain the motion made at the trial and to enter judgment for the defendant. 177 F. 842, 101 C. C. A. 56. The question considered by the Supreme Court was whether the Circuit Court of Appeals erred in reversing the judgment, and, if it did not err in that regard, whether it should have awarded a new trial, instead of directing a judgment for the defendant on the evidence notwithstanding the verdict for the plaintiff. It was held that the Circuit Court of Appeals did not err in’ reversing the judgment, but that it did in failing to direct a new trial, instead of giving directions to enter a verdict. It had under consideration a statute of Pennsylvania as to the practice. It held that it was an infraction of the Seventh Amendment of the Constitution, above referred to, not to do so. The Circuit Court of Appeals held that, on examination of the evidence, there was not sufficient to sustain the verdict, and on that ground directed a verdict for the defendant. They did this on the theory, not that judgment was required by the state of the pleadings, but that it was warranted by the evidence. Although practically setting aside the verdict, they did not order a new trial, but presumed finally to pass upon the issues of fact presented by the pleadings, and directed a judgment accordingly.
In Young v. Central R. Co. of N. J., which was also a ease tried under the practice prevailing in the state of Pennsylvania, a judgment in favor of the plaintiff was reversed by the Circuit Court of Appeals, and the cause remanded) with instructions to the trial court, not for a new trial, but for judgment for defendant non obstante veredicto. 200 F. 359, 118 C. C. A. 465, L. R. A. 1916E, 927. The Supreme Court affirmed the judgment of reversal, and remanded the case to the trial court, but with directions for a new trial, and reversing that part of the decision of the Circuit Court of Appeals, which directed a verdict for the defendant because of the provisions of the Seventh Amendment. 232 U. S. 602, 34 S. Ct. 451, 58 L. Ed. 750.
In Pedersen v. D., L. & W. R. R., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, the plaintiff recovered for negligence of his employer while both were in defendant’s service. There was a judgment for the plaintiff. Judgment was thereafter ordered for the defendant by the Circuit Court of Appeals (197 F. 537, 117 C. C. A. 33), on the ground that the verdict was not sustained by the evidence. The Supreme Court held that there was evidence to sustain the finding that plaintiff’s injury was due to negligence of the defendant while he was employed in interstate commerce, and the case was one for the jury’s verdict. The court said:
“A motion for a new trial was interposed by the defendant, but no ruling was had upon it, doubtless because the court concluded tJaat it could and should render judgment for the defendant on the evidence notwithstanding the verdict. In this the court was in error, first, because it was without authority so to do; * * * and, second, because the evidence did not warrant such a judgment. Un
And again in Myers v. Pittsburgh Coal Co., 233 U. S. 184, 34 S. Ct. 559, 58 L. Ed. 906, a verdict was rendered against the coal company. On a writ of error, the case was reversed by the Circuit Court of Appeals (203 F. 221, 121 C. C. A. 427), and it was brought to the Supreme Court on a certiorari. The Circuit Court of Appeals held that, on the facts, the plaintiff had not established a right to recover, and the judgment was reversed, without directing a new trial. The Supreme Court held that there was ample testimony to carry the case to the jury, that it was error to set aside its verdict, and concluded that the judgment of the Circuit Court of Appeals be reversed, and the judgment of the District Court be affirmed, and the ease was remanded to that court. Again in Fidelity Title Co. v. Dubois Electric Co., 253 U. S. 212, 40 S. Ct. 514, 64 L. Ed. 865, the Circuit Court of Appeals had reversed a judgment without ordering a new trial (253 F. 987, 165 C. C. A. 668), and the Supreme Court held that the question was for the jury; that the Circuit Court of Appeals had erred, and directed, “Judgment reversed; judgment of the District Court, affirmed.”
In Hoffman v. American Mills, 288 F. 768, referred to in the prevailing opinion, this court directed the District Court to enter a verdict, which had been set aside and non-suit granted. In that case the court dismissed the complaint, although it let the verdict stand, so that it might be reinstated in the event that the Circuit Court of Appeals held it was error to order a nonsuit. Thus permitting a verdict to stand is of doubtful assistance, for it is hard to conceive of how a verdict might stand in the face of a judgment nonsuiting the plaintiff. In the ease of Pellerin v. International Cotton Mills, 248 F. 242, 160 C. C. A. 320, a verdict was reinstated, but this was by stipulation of the parties as to the amount, and which also granted permission so to do.
■ To reinstate the verdict and judgment here would not be a re-examination of the facts tried by the jury, as was done in the Slocum Case by the Circuit Court of Appeals. The error was one of law in holding that there was no evidence to support the claim of employment in interstate commerce. The principle of the Slocum Case has application to any case where there is some evidence in the record supporting the plaintiff's action, although there may have been disagreement by the trial judge or the appellate court with the findings of the jury as to the evidence, or the effect thereof. But such rule has no application where the trial by jury has been had, and where there has been no error in denying the motion to submit the evidence to the jury, and a judgment has been entered approving the verdict of the jury. No denial of the right of trial by jury exists, and it is permissible to reinstate this verdict, within the rule announced in the Pedersen, Fidelity Co., and Myers Cases.
The order setting aside the verdict and judgment should he reversed, and the judgment allowed to stand as entered.