No. 592 | 4th Cir. | Nov 9, 1905
This is an action of trespass on the case, brought by the defendant in error against the plaintiff in error to recover damages arising from the death of the intestate of the defendant in error, who lost his life while in the employ of the plaintiff in error, through the alleged negligence of the latter.
The plaintiff in error, a corporation chartered under the laws of Rhode Island, was engaged in building a dam across the Dan river, just opposite the city of Danville, in the county of Pittsylvania, for the Dan River Power & Manufacturing Co., a corporation engaged in manufacturing cotton upon a large scale; a part of said work was the construction of a “concrete dam,” and work was begun on both the north and south sides of the river about the same time. As it progressed on the south side, and extended from the bank out into the river bed, it became necessary to construct a certain platform, tables, etc., to be used for storing sand, rock, cement, and other material for use in concreting, which were constructed by the plaintiff in error under the direction of its superintendent and chief engineer. On the morning of the 18th of September, 1903, while the plaintiff’s intestate was engaged at work upon the platform thus constructed, it gave way, and he was thrown into the river below and lost his life. The plaintiff below based his case upon the alleged negligence of the defendant in (1) having and maintaining an insufficient and unsafe structure for the purpose of the business in hand; (2) for using insufficient, defective, old, rotten, and inadequate timbers in the construction of said platform; and'(3) in having an unfit and improper employé, one Monaghan, as foreman and boss in charge of the work in which said intestate was engaged at the time he lost his life. The plaintiff in error, having interposed its demurrer to the original and several amended declarations, pleaded not guilty, on which issue was joined, and a jury was impaneled on this issue, and rendered a verdict in favor of the defendant in error, upon which judgment was duly entered; and this writ of error was sued out by the plaintiff in error.
1. Three of the assignments of error relate to the action of the lower court in overruling the defendant’s demurrer to the amended declaration, as well as to two additional amendments thereto, and also to the action of the court in suggesting to the counsel for the plaintiff the propriety of adding a new count to the declaration. Assuming the objections sought to be interposed to this declaration as amended can be made by demurrer in the federal court, said objections being merely for matters of duplicity in pleading, they seem to be clearly without foundation, either as respects the amended declaration or either of the subsequent amendments thereto. The demurrer was sustained to the original declaration, and the plaintiff filed what is
*646 "The main objection to the declaration relates to the first count, and the foundation of the objection is that this count alleges three distinct grounds of negligence as the cause of the injury sustained by the plaintiff, either of which would of itself, independently of the others, constitute a sufficient ground for the action. In other words, the claim is that the count is bad for duplicity. The grounds so stated are, the negligence of the defendant in failing to exercise due care in selecting competent servants, in failing to provide a sufficient number of train hands, and in failing to supply and maintain suitable and safe machinery and instrumentalities for the conduct- of the business of the defendant. They are conjunctively alleged as concurrent causes, which, co-operating together, produced the injury. It is very questionable whether this constitutes duplicity. It is stated by eminent text-writers on the subject of pleading, that no matters, however multifarious, will operate to make a pleading double that together, constitute but one connected proposition or entire point. Stephen on Pleading, 232-3, 263; 4 Minor’s Inst. pt. 2, p. 927; and Va. F. & M. I. Co. v. Saunders, 86 Va. 969" court="Va." date_filed="1890-06-19" href="https://app.midpage.ai/document/virginia-fire--marine-ins-v-saunders-6808500?utm_source=webapp" opinion_id="6808500">86 Va. 969, 11 S. E. 794. But, even if this count was obnoxious to the charge of duplicity, the fault could not be taken advantage of on a general demurrer.”
This court will follow the state practice, as well m trie matter of the sufficiency of the declaration and the statement of the several causes of action relating to an injury arising from a single occurrence in one and the same count (Roberts v. Lewis, 144 U.S. 653" court="SCOTUS" date_filed="1892-04-25" href="https://app.midpage.ai/document/roberts-v-lewis-93354?utm_source=webapp" opinion_id="93354">144 U. S. 653, 12 Sup. Ct. 781, 36 L. Ed. 579" court="SCOTUS" date_filed="1892-04-25" href="https://app.midpage.ai/document/roberts-v-lewis-93354?utm_source=webapp" opinion_id="93354">36 L. Ed. 579; Bank v. Lowry, 93 U.S. 72" court="SCOTUS" date_filed="1876-10-30" href="https://app.midpage.ai/document/chemung-canal-bank-v-lowery-89345?utm_source=webapp" opinion_id="89345">93 U. S. 72, 23 L. Ed. 806; Cooke v. Avery, 147 U.S. 375" court="SCOTUS" date_filed="1893-01-23" href="https://app.midpage.ai/document/cooke-v-avery-93498?utm_source=webapp" opinion_id="93498">147 U. S. 375, 13 Sup. Ct. 340, 37 L. Ed. 209" court="SCOTUS" date_filed="1893-01-23" href="https://app.midpage.ai/document/cooke-v-avery-93498?utm_source=webapp" opinion_id="93498">37 L. Ed. 209), as in the manner and method of making such defense (Burley v. German Am. Bank, 111 U.S. 216" court="SCOTUS" date_filed="1884-04-07" href="https://app.midpage.ai/document/burley-v-german-american-bank-91103?utm_source=webapp" opinion_id="91103">111 U. S. 216, 4 Sup. Ct. 341, 28 L. Ed. 406" court="SCOTUS" date_filed="1884-04-07" href="https://app.midpage.ai/document/burley-v-german-american-bank-91103?utm_source=webapp" opinion_id="91103">28 L. Ed. 406; Dabney’s Fed. Juris. & Law Procedure, §§ 117, 118).
The action of the trial judge in suggesting the additional fourth count to this declaration was clearly free from objection, and the defendant was in no manner prejudiced thereby. A judge .might, of course, abuse his discretion in respect to the amendment of pleadings, by making suggestions in a way that would indicate that he was a partisan of one side or the other, or that he was in some way prejudiced in the case; but there is no such suggestion here. What the judge did was harmless. The suggestion was to more clearly set forth the plaintiff’s cause of action, which, in our view, independent of such suggestion, had already been sufficiently averred. It was made to counsel in the absence of the jury, and no injury resulted therefrom to the defendant. The judge doubted whether the second count in the declaration set forth with sufficient clearness the charge to furnish proper material for the construction of the platform in question, though it sought to make such averments, as also the fact of the failure to furnish the proper appliances, and he suggested, to remove the question of possible duplicity in the declaration, that another count be added, treating the second count as one for the failure to furnish safe and proper appliances, and the fourth or new count to cover the question of the failure to use suitable material in its construction. In 1 Va. Law Reg. 385, it is intimated that a motion to strike out one of these causes of action, where two are averred in a single count, is the proper remedy; and 5 Robinson’s Prac. (New Ed.) 305, says that the proper course is for the court to direct the pleader to divide his causes of action, and present them in several counts. That is what the judge did, his idea being to get
“Rules of pleading are made for the attainment of substantial justice, and are to be construed so as to harmonize with it if possible. A mistaken view of one’s rights or remedies should not be permitted wholly to defeat a claim founded upon principles of equity and justice, and if the pleadings can be so amended as to admit proof of such claim, and such amendment does not introduce a new cause of action, though it may set up a new measure of damages, or work a real hardship to the party defendant, it is within the discretion even of the appellate court to permit such amendment to be made.” Schooner Anne v. United States, 7 Cranch, 570" court="SCOTUS" date_filed="1813-03-16" href="https://app.midpage.ai/document/schooner-anne-v-united-states-85038?utm_source=webapp" opinion_id="85038">7 Cranch, 570, 3 L. Ed. 442.
2. The next assignment of error relates to the refusal of the court to give certain instructions offered by the plaintiff in error, and rejected by the court, and to the giving of those contained in the court’s charge. The defendant’s first instruction requested the court to instruct a verdict for the defendant, which the court refused. This is a usual motion in federal practice, and one that is quite frequently resorted to, resulting in the saving of time to the court and litigants, and much expense; but in our judgment it would have been clearly error for the court below to have adopted this method of disposing of this case. Upon every material issue, the conflict in the evidence was sharply drawn. In a word, the plaintiff insisted that the defendant failed to furnish a reasonably safe place, constructed of suitable and sound material, upon which his intestate was to work in the discharge of the duty required of him; that said platform was improperly constructed; that the defendant knew it was not suitable, and the materials used in its construction unsound; that Monaghan, under whom the plaintiff’s intestate worked, was not a competent and careful boss or foreman; and that these facts were known, or should have been known, to the plaintiff in error. A large number of witnesses were examined, pro and con, on these questions, much the larger number on every point being examined by the plaintiff; and the jury, upon seeing and hearing these witnesses, were the proper judges to pass upon the question of fact at issue between the parties, and the proper weight to be given to such evidence, as well' as upon the conflict between the witnesses themselves. It was not a case, therefore, to be taken from the jury. It is only in cases where there is either no evidence, or clearly insufficient evidence, upon which to base a verdict, that the judge should exercise his prerogative to instruct a verdict for one side or the other.- And in this case, where the negligence consisted of the failure of the master to properly perform its duty respecting nonassignable obligations imposed upon it by law touching the servant, the case should clearly have been left to the jury, as was done. D., L. & W. R. R. Co. v. Converse, 139 U.S. 469" court="SCOTUS" date_filed="1891-03-30" href="https://app.midpage.ai/document/delaware-lackawanna--western-railroad-v-converse-93030?utm_source=webapp" opinion_id="93030">139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213" court="SCOTUS" date_filed="1891-03-30" href="https://app.midpage.ai/document/delaware-lackawanna--western-railroad-v-converse-93030?utm_source=webapp" opinion_id="93030">35 L. Ed. 213; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/grand-trunk-railway-co-v-ives-93328?utm_source=webapp" opinion_id="93328">144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/grand-trunk-railway-co-v-ives-93328?utm_source=webapp" opinion_id="93328">36 L. Ed. 485; Tex. & Pac. R. R. Co. v. Cox, 145 U.S. 593" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-cox-93410?utm_source=webapp" opinion_id="93410">145 U. S. 593, 606, 12 Sup. Ct. 905, 36 L. Ed. 829" court="SCOTUS" date_filed="1892-05-16" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-cox-93410?utm_source=webapp" opinion_id="93410">36 L. Ed. 829; Tex. & Pac. Ry. Co. v. Gentry, 163 U.S. 353" court="SCOTUS" date_filed="1896-05-18" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-gentry-94493?utm_source=webapp" opinion_id="94493">163 U. S. 353, 368, 16 Sup. Ct. 1104, 41 L. Ed. 186" court="SCOTUS" date_filed="1896-05-18" href="https://app.midpage.ai/document/texas--pacific-railway-co-v-gentry-94493?utm_source=webapp" opinion_id="94493">41 L. Ed. 186.
The assignment of errors respecting the other instructions offered
3. The next assignment of error relates to the refusal of the court to set aside the verdict of the jury and grant a new trial, because the verdict was contrary to the law and the evidence. The action of the trial court in granting or refusing to set aside a verdict is not subject to review in this court, being a matter within the discretion of the lower court, and this assignment is therefore not well taken. Mo. Pac. R. R. Co. v. C. & A. R. R. Co., 132 U.S. 191" court="SCOTUS" date_filed="1889-11-25" href="https://app.midpage.ai/document/miss-pac-ry-v-ch-and-alt-rd-92587?utm_source=webapp" opinion_id="92587">132 U. S. 191, 10 Sup. Ct. 65, 33 L. Ed. 309" court="SCOTUS" date_filed="1889-11-25" href="https://app.midpage.ai/document/raimond-v-terrebonne-parish-92588?utm_source=webapp" opinion_id="92588">33 L. Ed. 309; Wilson v. Everett, 139 U.S. 616" court="SCOTUS" date_filed="1891-04-13" href="https://app.midpage.ai/document/wilson-v-everett-93047?utm_source=webapp" opinion_id="93047">139 U. S. 616, 621, 11 Sup. Ct. 664, 35 L. Ed. 286" court="SCOTUS" date_filed="1891-04-13" href="https://app.midpage.ai/document/wilson-v-everett-93047?utm_source=webapp" opinion_id="93047">35 L. Ed. 286; Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128" court="SCOTUS" date_filed="1891-12-21" href="https://app.midpage.ai/document/van-stone-v-stillwell--bierce-manufacturing-co-93204?utm_source=webapp" opinion_id="93204">142 U. S. 128, 134, 12 Sup. Ct. 181, 35 L. Ed. 961" court="SCOTUS" date_filed="1891-12-21" href="https://app.midpage.ai/document/van-stone-v-stillwell--bierce-manufacturing-co-93204?utm_source=webapp" opinion_id="93204">35 L. Ed. 961; Addington v. United States, 165 U.S. 184" court="SCOTUS" date_filed="1897-02-01" href="https://app.midpage.ai/document/addington-v-united-states-94595?utm_source=webapp" opinion_id="94595">165 U. S. 184, 17 Sup. Ct. 288, 41 L. Ed. 679" court="SCOTUS" date_filed="1897-02-01" href="https://app.midpage.ai/document/addington-v-united-states-94595?utm_source=webapp" opinion_id="94595">41 L. Ed. 679.
4. Upon the whole case, we cannot perceive that the plaintiff in error was in any manner prejudiced by any of the rulings of the court below, in the trial of this case. As was said by Mr, Justice Lamar, in Ætna Life Insurance Co. v. Ward, 140 U.S. 76" court="SCOTUS" date_filed="1891-04-27" href="https://app.midpage.ai/document/aetna-life-ins-co-v-ward-93066?utm_source=webapp" opinion_id="93066">140 U. S. 76, 91, 11 Sup. Ct. 720, 35 L. Ed. 371" court="SCOTUS" date_filed="1891-04-27" href="https://app.midpage.ai/document/aetna-life-ins-co-v-ward-93066?utm_source=webapp" opinion_id="93066">35 L. Ed. 371:
“It may be that, if we were to usurp the functions of the jury and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province on a writ of error. In such a case we are confined to the consideration of the exceptions taken at the trial, to the admission or rejection of evidence, and to the charge of the court and its refusal to charge. We have no concern with questions of fact, or the weight to be given to the evidence which was properly admitted”,—citing Minor v. Tillotson, 2 How. 392" court="SCOTUS" date_filed="1844-03-16" href="https://app.midpage.ai/document/minor-v-tillotson-86285?utm_source=webapp" opinion_id="86285">2 How. 392, 393, 11 L. Ed. 312; Keller’s Lessee v. Eckert, 4 How. 289" court="SCOTUS" date_filed="1846-02-18" href="https://app.midpage.ai/document/zellers-lessee-v-eckert-86371?utm_source=webapp" opinion_id="86371">4 How. 289, 11 L. Ed. 979; Dirst v. Morris, 14 Wall. 484" court="SCOTUS" date_filed="1872-11-11" href="https://app.midpage.ai/document/dirst-v-morris-88557?utm_source=webapp" opinion_id="88557">14 Wall. 484, 490, 20 L. Ed. 722; Prentice v. Zane, 8 How. 470" court="SCOTUS" date_filed="1850-02-26" href="https://app.midpage.ai/document/prentice-v-zanes-administrator-86539?utm_source=webapp" opinion_id="86539">8 How. 470, 485, 12 L. Ed. 1160; Wilson v. Everett, 139 U.S. 616" court="SCOTUS" date_filed="1891-04-13" href="https://app.midpage.ai/document/wilson-v-everett-93047?utm_source=webapp" opinion_id="93047">139 U. S. 616, 11 Sup. Ct. 664, 35 L. Ed. 286.
The judgment of the lower court will be affirmed.