289 F. 767 | 2d Cir. | 1923
Lead Opinion
The parties will be referred to as below. On October 16, 1918, plaintiffs? intestate, while crossing Rude street, in the village of Weedsport, Cayuga county, N. Y., was struck by a north-bound passenger train and instantly killed. At the time he was driving a horse attached to a buggy with the top up and the side curtains down. Before his advance to the crossing, he had stopped at a house along the highway, 275 feet from the point where he met his death. There he talked with a friend for about 5 minutes. The last seen of him by any eyewitness was his proceeding toward the track, his horse walking. Rude street runs east and west, and there is an embankment of about 12 feet, up which grade he proceeded. The railway tracks run northeast and southwest at this point, and cross the highway at a down grade of about one foot in every 100 feet. There are sharply sloping sides to the roadway of Rude street, and there are no fences along it. The crossing plank projects some 3 or 4 inches above the level of the highway. Rude street crosses the highway at an acute angle, so that the deceased, as he approached the crossing, had
In the answer interposed the defense of res adjudicata is relied upon. It appears that, before the commencement of the action in the United
“That leaves simply the question as to what situation we are in under the changed rule. The changed rule says, in substance, that the absence of contributory negligence need no longer be proven by the plaintiff, but it is an affirmative defense, to be pleaded and proven by the defendant. It is pleaded, and in my judgment it is proven, by the plaintiff herself. That being so, I apprehend the defendant has an absolute right to stand upon the testimony which is in the case, which establishes contributory negligence, and avail itself of it on á motion of this character. I cannot conceive that there would be any reason in denying the motion at this time and telling the defendant to put in its case, and then grant a nonsuit at the close of defendant’s case upon the same state of facts. I must grant this motion simply and only upon the ground that the facts established by the plaintiff herself affirmatively show that the plaintiff’s intestate came to his death by reason of his own negligence which contributed to and brought about the injury from which he died. The motion is granted.”
“On the trial of any action to recover damages for causing death the contributory negligence of the person hilled shall be a defense, to be pleaded and proven by the defendant.”
“A final judgment, dismissing the complaint, either before or after a trial, rendered in an action hereafter commenced, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment roll, that it is rendered upon the merits.”
Section 1237 of the Code prescribes what the judgment roll shall consist of and the papers contained therein, and indicates where inquiry must be made if there was a dismissal on the merits; and provides:
“The clerk, upon entering final judgment, must immediately file the judgment roll, which must consist, except where special provision is otherwise made by law, of the following papers: The summons; the pleadings, or copies thereof; the final judgment, and the interlocutory judgment, if any, or copies thereof; and each paper on file, or a copy thereof, and a copy of each order, which in any way involves the merits,- or necessarily affects the judgment. If judgment is taken by default, the judgment roll must also contain the papers required to be filed, upon so taking judgment, or upon making application therefor; together with any report, decision or writ of inquiry, and return thereto. If judgment is taken after a trial, the judgment roll must contain the verdict, report, or decision; each offer, if any, made as prescribed in this act, and the exceptions or ease then on file.
“Upon an appeal to the Court of Appeals from a judgment or order of the Appellate Division of the Supreme Court, the opinion of the Appellate Division, if any, shall, for the purposes of the appeal, be deemed to be a part of the judgment roll or appeal papers.”
The judgment roll offered in evidence on this trial does not show that the dismissal was upon the merits. There were no findings of fact presented or signed. The defendant offered no proof. To have entered judgment as upon the merits would have been an error in form. Nauyalis v. Phila. & Reading Coal & Iron Co., 170 App. Div. 500, 156 N. Y. Supp. 357. In an action at law in the state court, a dismissal of the complaint is but a nonsuit, and does not determine the merits of the action. Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400, 92 N. Y. Supp. 208, affirmed 184 N. Y. 582, 77 N. E. 1192. To constitute a disposition ón the merits, it is necessary that the defendant either offer proof and rest, or rest without offering proof, and then move for the direction of a verdict, otherwise it is error to dismiss upon the merits. Peterson v. Ocean Elec. Ry. Co., 214 N. Y. 43, 108 N. E. 199; Bail v. N. Y., N. H. & H. R. Co., 201 N. Y. 355, 94 N. E. 863. The rule in the federal courts permits a new action to be maintained even after a decision dismissing' the complaint has been approved on appeal to the Court of Appeals of, the state. Ploxin v. B. H. R. Co., supra.
It is argued, however, that by reason of section 841-b of the Code of Civil Procedure of the state the contributory negligence of a person killed becomes a defense to be pleaded by the defendant, and the argument is that, since it was determined in the state court that the plaintiffs’ intestate was guilty of contributory negligence, that finding is conclusive as establishing the affirmative defense of res adjudicata. Thus it is argued that the dismissal of the complaint did not rest on the «failure of proof only. It is not questioned but that the New York Supreme Court had general jurisdiction over the subject-matter and of «the parties before it, and therefore the action, of that court cannot be
Judgment affirmed.
Concurrence Opinion
(concurring). Though agreeing with Judge Manton’s opinion, the novelty of the question raised on or by the enactment of 841-b, Code Civ. Pro., may excuse this concurrence.
Clearly the trial Justice in the Supreme Court of New York, found the fact to be that plaintiff’s decedent was guilty of contributory negligence. That fact could just as well be established by plaintiff’s own evidence, as in any other way.
Plaintiff-in-error’s contention at this bar, is that this finding once lawfully made is always and in every court, binding on plaintiff below; and further that the form in which the State Court recorded its decision, is of no importance; or at least that the substantial finding must be given effect if discoverable in or in spite of the form chosen.
I do not think this true in a case of the kind presented. The well known rule is that if under New York procedure a complaint be dismissed not “on the merits,” plaintiff is not barred from a second suit. If the trial is with a jury as of right, the equivalent of a dismissal on the merits is a directed verdict; but a defendant cannot move for a direction before he rests; but he can move for a dismissal of that particular complaint at any time. The propriety of this practice is specifically pointed out in Porges v. United States, etc., Co., 203 N. Y. 181, 186, 96 N. E. 424, where it is also held that a motion for dismissal will be treated as one for a directed verdict if such motion should have been made and granted. The same point is illustrated by the Nauyalis cases cited supra.
But in this case, defendant below, when in the State Court, neither moved for a direction of verdict, nor had any right so to do, for it neither introduced evidence nor rested on that adduced by plaintiff. Consequently the trial court did no more than grant the motion as made; and the ordinary order of dismissal is correct both in form and substance. Indeed non constat that defendant ever intended to ask for more, or that the Court would have granted more. Therefore the Ploxin Case (supra) and many earlier and similar rulings apply.
As to the questions of negligence, including contributory, they were left to the jury in the manner now for some years approved in this circuit. Lehigh Valley, etc., Co. v. Allied, etc., Co. (C. C. A.) 271 Fed. 900; Taber v. Davis (C. C. A.) 280 Fed. 612; compare contra Phillips v. Penna., etc., Co. (C. C. A.) 283 Fed. 381.