61 F. 568 | 1st Cir. | 1894
Lead Opinion
When the defendant in the court below moved that a verdict be directed in its favor, it was put in the fol-. lowing form, as appears by the record:
“The defendant offered no testimony, and at the conclusion of the plaintiff’s testimony asked the court to rule that there was no evidence that the' said John Griffin was in the exercise of due care.”
John GrifSn was the person on account of whose death the action was commenced. The record then proceeds:
“The judge so ruled, and ordered a verdict for the defendant, and thereupon a verdict was so returned; to which ruling and order the plaintiff excepts, and she prays that her exceptions may be allowed.”
By the form of the defendant’s request for this ruling it limited itself, for all the purposes of this.appeal, to the precise proposition stated by it. The practice in the federal courts is thoroughly settled that when one party makes a motion, or interposes an objection,' on grounds specifically stated, he cannot, at a subsequent stage of the case, shift'or enlarge his position, unless perhaps when it clearly appears that by so doing no detriment could come to the other party. Therefore the party so moving or objecting is ordinarily required to put his finger on the very pith and marrow of what he claims, and
It was suggested at the argument of the case that, even under the employers’ liability act of Massachusefls, on which statute plaintiff relies, the federal courts will apply their general rule that the want of due care on the part of the plaintiff, in a case of an injury happening through negligence, is a matter of defense, and that the plaintiff is not ordinarily required, in the first place, to give evidence touching it. That question was not raised in the circuit court, and has not been brought before us in such form as renders us desirous of disposing of it, and we are not required to do so in the present-case.
We do not deem it. necessary to set out the evidence in the court below, or to analyze it, in this opinion, and we consider it, sufficient ro say that the case falls within the practical application of the rules Touching due care, and of the inferences to be drawn from the facts proven, which are accepted and approved in Maguire v. Railroad Co., 146 Mass. 379, 382, 15 N. E. 904; Thyng v. Railroad Co., 156 Mass. 13. 16, 30 N. E. 169; and Maher v. Railroad Co., 158 Mass. 36, 44, 32 N. E. 950.
We do not intend to suggest whether the propositions covered by these cases, and which we apply to the case at bar, are or not mere rules of evidence as to which we are bound by the decisions of the highest court of the state of Massachusetts, because, whether we are bound by them or not, they meet our approval, which is sufficient at present. We will only add that the circumstances of the various cases which we cite, as well as those of that at bar, essentially distinguish them from cases like that of the approach of a traveler to a railroad crossing, where, ordinarily, it is necessary to show the performance of some positive duty on the part of the person injured in order to make out due care.
Judgment of the circuit court, reversed, and case remanded for further proceedings.
NELSON, District Judge, concurs in this opinion.
Concurrence Opinion
(concurring). This case depends on the correctness of the ruling of the circuit court ordering a verdict for the defendant. As stated in the plaintiff’s bill of exceptions:
“The defendant offered no testimony, and at the conclusion of the plaintiff’s testimony asked the court to rule ‘that there was no evidence that the said John Griffin was in the exercise of dne care.’ The judge so* ruled, and ordered a verdict for the defendant, and thereupon a verdict was so rendered; to which ruling and order the plaintiff excepts, and prays that her exceptions may be allowed.” ‘
It is obvious that there is involved in this case thus presented a question of law as well as one of fact. If, in fáct, the plaintiff had offered no evidence proper to go to the jury upon the due care and diligence of John Griffin, was the ruling correct? Contributory negligence on the part of a person injured is always fatal to his maintaining an action for the recovery of damages on account of the negligence of a defendant. There is, however, .great conflict of courts in respect to the party upon whom the burden of proof rests. Many courts hold the plaintiff bound to prove affirmatively that he was in the exercise of proper care, and that no negligence on his part contributed to the injury; others maintain the rule that contributory negligence on the part of the person injured is matter of defense, and must be proved by the whole evidence, irrespective of the side by which it is produced. In the courts of the United States the rule that contributory negligence is a matter of defense is firmly settled. Railroad Co. v. Gladmon, 15 Wall. 401; Railroad Co. v. Horst, 93 U. S. 291; Hough v. Railway Co., 100 U. S. 213, 225; Railroad Co. v. Mares, 123 U. S. 710, 720, 721, 8 Sup. Ct. 321; Coasting Co. v. Tolson, 139 U. S. 551, 557, 11 Sup. Ct. 653; Railway Co. v. Volk, 151 U. S. 73, 77, 14 Sup. Ct. 239. The contrary rule prevails in the courts of Massachusetts, in which state this case arose. This, however, is not a matter wherein the federal courts are bound to follow the state decisions. But it is said this case arises under a state statute, and that the interpretation of that statute by the state court must be followed. That statute is, so far as the present inquiry is concerned, as follows:
“Where, after tlie passage of this act, personal injury is caused to an employee, who is himself in the exercise of due diligence at the time: By reason of any defect in the ways, works or machinery, connected with or used in. the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works or machinery, were in proper condition; * * * the employee, or in ease the injury results in death, the legal representatives of such employee, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in its work.”
The manifest purpose and intention of this legislation were to place servants and employes on the same footing with, and to give them the same protection in, respect to injuries caused by the negligence of their employers that persons not employes or servants had. The statute removed, or was designed to remove, some of the preexisting limitations upon the remedy of an employe against his employer. Ryalls v. Mechanics’ Mills, 150 Mass. 190, 22 N. E. 766. The words, “who is himself in the exercise of due care and diligence at the time,” introduce no new limitation or restriction of the right to recover. They leave him just where other persons stand. If they were not found in the statute, there can be no doubt that every court would imply them. The implication would be compelled by the terms of the act that “such employee shall have the same right of compensation and remedies against the employer as if the employed had not been an employee of nor in the service of the employer, nor
In view of the practical importance of the legal question, affording, as it does, a rule applicable to all cases that may come before this court under the employers’ liability act of Massachusetts, it ought to he considered and determined, and, if found favorable to the plaintiff, the decision of this case should he based on it, rather than on the question whether any evidence was produced at the trial which could and ought to have been submitted to the jury. But, while thus giving precedence to the point of law, I do not differ from other members of the court in the view that there was evidence as to the care and diligence of Griffin that should have been passed upon by the jury.
