138 F. 37 | 6th Cir. | 1905
The case brought up by this writ of error is an action instituted in the court below by the plaintiff in error to recover damages for personal injuries sustained by him in consequence, as he alleges, of the negligence of the defendant while he was a passenger on a car of defendant’s passenger train, whereby the car was thrown from its track against an engine standing on
The plaintiff had taken a ticket at South Bend, Ind., for a passage over the defendant’s road to Detroit. ■ There were seven, cars in front of the one on which the plaintiff was riding, and one, a sleeper, behind. The train left South Bend at 11:30 p. m., and at 3:30 in the morning was passing through Millets Station at a speed of 45 miles an hour. Some time before that a long freight train drawn by two engines, coming from the east, had passed off the main track, and was standing on a side track on the south side of the main track and parallel therewith, awaiting the passage of the passenger train, No. 6, on which the plaintiff was riding. There was a switch at the west end of the side track, and some distance west of the station house, leading into the main track, and the switch wás adjusted so as to leave the main track clear for the passage through of the passenger train. This switch was of parallel rails, which at the movable end were thin, running to a point, and lying against the side of the rail when closed. The engine of the passenger train and seven cars passed over the switch safely. The forward truck of the plaintiff’s car also kept the main track, but the switch apparently opened before the rear truck reached it, and the rear end of the car was carried off to the right, and the car thrown with great violence against the engine standing in the front end of the freight train. One of the passengers in the car was killed; several were seriously injured, among them the plaintiff, who was so-grievously hurt that he is crippled for life. The cause of the accident was the dislocation of the switch bar at the joint where its two parts are united, whereby the part (which for convenience is called here part 2) carrying at their proper distance apart the front or movable ends of the switch rails was left unattached to the part (called part 1) coming from the switch stand, and the forward end of the switch was left floating, i. e., without any lateral fastening. Apparently, also, the concussion and jar of the passenger train had to do with the dislocation of the switch bars and the lateral movement of the fore end of the switch whereby it became opened. Until the afternoon of the day before the accident the switch stand had stood upon the south side of the tracks, but on that afternoon it was moved over to the north side of the tracks to make way for the
During the course of the trial the defendant produced before the court and jury the parts of a switch bar which some of its witnesses testified was the identical switch bar in question which had been taken out two days after the accident and preserved for testimony. Part 1 of this switch bar had a projection on the end where it con
Two preliminary questions are raised by counsel for defendant which it is urged should first be settled before the merits are considered :
First. It is contended that from lapse of time after the trial the court had lost its authority to settle the bill of exceptions, and that it is therefore a mere nullity. The verdict was rendered June 30, 1903. The term then pending expired on the first Tuesday of November following. No judgment was rendered during that term. But on October 19, 1903, the court ordered that the time for settling a bill of exceptions should be extended until January 2, 1904. By successive orders the time was further extended until the time when the bill was settled, July 18, 1904, and thereupon the court entered judgment on the verdict for defendant. Meantime Mr. Meddaugh, the attorney of record for defendant, had, on December 20th, died, and the defendant had not appointed another. On April 20th counsel for plaintiff served a proposed bill of exceptions on Geer & Williams, who had managed and tried the cause as counsel for defendant. They made no objection to the service on account of Mr. Meddaugh’s death, but took no action with reference to the settlement of the bill. On June 4th the plaintiff gave notice to the defendant to appoint a new attorney, as provided by a Michigan statute. This notice was ignored by defendant, and on the 8th of July the court made an order which, after reciting the notice and that no appearance had been entered for defendant, directed the defendant to show cause on the 11th of that month why the bill of exceptions which had been served on Geer & Williams should not be settled. On that day Geer & Williams and F. E. Rankin “appearing specially,” as the record states, and, on an affidavit of Mr. Rankin stating the death of the attorney of record and that the extensions of time for settling a bill were made ex parte, moved that the order to show cause be dismissed. The motion was denied, and, on request of counsel for defendant, the time for settling the bill was extended one week, at the end of which time it was settled, as before stated. The contention for defendant is that the time wherein a bill of exceptions could be settled expired at the end of the term during which the cause was tried. But this is not a valid objection. By the lapse of the term without the rendition of a judgment, the cause remained open and in all things subject to the power of the court. Until the judgment was entered, the . court had power to extend the time for settling a bill of exceptions, and, if the reasons for it were sufficient, it would be not only proper, but due to the party that it should be done. It is true that it has sometimes been said in judicial opinions that the bill must be settled during the term at which the cause was tried. But doubtless
The second question propounded by counsel is based upon the following facts: At the close of the production of evidence the counsel for the defendant preferred a request to the court that the jury be directed to return a verdict for that party. This request 'having been discussed by the counsel for the respective parties, the court was proceeding to give its opinion and instructions to the jury, and seemed to indicate, as plaintiff’s counsel thought, a purpose to sustain the defendant’s request for a positive direction in its favor. Thereupon the court permitted an interruption to allow the plaintiff’s counsel to put on file certain requests to instruct the jury, and assured the counsel that he should have the benefit of them, and then, after giving its views at length, directed a verdict for defendant. The requests filed by plaintiff were eighteen in number, the first being as follows:
“(1) Under the pleadings and proofs, you are instructed that your verdict must be for the plaintiff, and the only question for you is as to the amount of damages.”
The others related to particular matters of law and fact involved in the issue. The court did not comply with any of these requests. The plaintiff excepted to the ruling of the court upon defendant’s motion for directing the verdict in its favor, and to the refusal of the court to give the instructions requested in his behalf. Coun
In Beuttell v. Magone it is expressly stated that such request made by the respective parties is not the equivalent of a submission of the case to the court without the intervention of a jury, within the intendment of Rev. St. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525, 570]. The rule must therefore rest upon an implication of consent. Can any implication of consent be fairly drawn when, as here, the party couples his request for a peremptory instruction in his favor with further requests for instructions on the questions of law applicable to certain assumed facts which the jury may find? The presentation of requests for instructions in that form necessarily imports that the party expects that, if his first request is refused, the case will go to the jury, and that the court will give his other requests, or such of them as the court thinks are proper. For, if his request for a peremptory instruction is given, the others are futile. May not a party ask for a peremptory instruction in his favor without depriving himself, if the court thinks he is not entitled to it, of the right to have the jury pass upon the evidence and determine the issue? No valid reason is perceived why he should pay the penalty of losing a constitutional right by invoking the opinion of the court pro hac vice upon the preliminary question. It is, we believe, a common practice of the state and federal courts in Michigan and elsewhere in this circuit, when the party wishes to obtain the opinion of the court upon the question whether there is any evidence which could fairly be relied upon to defeat his claimed right, and, if the
Coming to the main question, the contention of the plaintiff was that, when the stand was moved in the afternoon, the sectionman, in order to detach parts 1 and 2 of the switch bar, pried up the end of the clip on part 2 so as to let the pin drop out of the hole in part 1; and that, when he had put the parts together again on the other side of the track, he neglected to bring the end of the clip back to its place. The defendant’s contention was that the sectionman took the members of the bar apart and put them together again without disturbing the clip, and that the clip was afterwards raised by some unknown person out of malice against the railroad company, or that in some other unknown way the clip was raised without any fault of defendant. It is not claimed that the plaintiff was at fault, or disputed that, as matter of law, a presumption of negligence against the defendant was raised by proof of the accident, and the absence of fault on the part of the plaintiff. That such is the law is well settled. If the testimony of the defendant’s section-man and his helpers were not contradicted and were given 'full credit, it might, and probably should, be found that the defendant was exculpated. But their evidence was subject to some criticism, and not altogether consistent either in itself or with the uncontroverted facts; and, contradicted as it was by other unimpeached witnesses upon vital facts, the determination of such facts depended upon the credibility of the witnesses, and nothing is more clearly settled than that this is the province of the jury.' The court below, in its opinion given before charging the jury, justifies the proposed instruction upon the ground that several unimpeached witnesses testified that when the switch was left that afternoon the clip was down in its proper position, and that this fact, thus proved, exonerated the defendant from any duty of further showing how the accident occurred. But the learned judge stated that it was conceded that the clip was sufficient for its purpose, and that there could be no accident attributable to the switch so long as the clip remained in its proper position. The undisputed facts remain
In his opinion the learned judge said:
“I state candidly that the undefaceable impression left upon my mind by ■this testimony is that the explanation offered by the railway company here in this case shows such a correct demonstration to my mind of immunity from liability that if the ease were submitted to you for your decision upon the facts, and you should find contrary to the result which X will announce, I should deem it my duty, in the exercise of sound judicial discretion, to set ■that verdict aside. That being the duty forced upon me by the rules of law, I am not only authorized, but required to give to the facts proven judicially the same force and effect as if your verdict should be for the defendant.”
If, indeed, the case for the plaintiff was so feeble that it would be the imperative duty of the court to set aside a verdict based upon .it, we should have no doubt that the court might end the case by a peremptory instruction to find for the defendant. The court might, upon motion, in the exercise of “sound judicial discretion” upon its view that the clear preponderance of the evidence was with the defendant, set aside a verdict for the plaintiff and order a new trial. But the court cannot balance the evidence when it is conflicting, and then compel the jury to find a verdict according to the court’s estimate of the relative weight of the evidence for the respective parties. Such a doctrine would efface the line of demarcation between the provinces of the court and jury.
Certain expressions used by the Justices in delivering the opinion ■of the Supreme Court are often laid hold of by counsel in cases in the federal courts as authority for some such doctrine as that of the ■court below. Indeed, in this court, and we have no doubt the same thing is true in the experience of all the federal appellate ■courts, come frequent repetitions of cases where opposite counsel ■contend for distinctly opposite doctrines in respect to the authority
Greenleaf, in the first volume of his work on Evidence, § 49, with his customary precision thus states the fundamental rules-of the trial of issues of fact:
“In trials of fact, without the aid of a jury, the question of the admissibility of evidence, strictly speaking, can seldom be raised; since, whatever be the ground of objection, the evidence objected to must of necessity be read or heard by the judge, in order to determine its character and value. In such cases, the only question, in effect, is upon the sufficiency and weight of the evidence. But in trials by jury, it is the province of the presiding judge to determine all questions on the admissibility of evidence to the jury, as well as to. instruct them in the rules of law by which it is be weighed. Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence is a question for the jury.”
In strict harmony with this statement is the language of Mr. Justice Clifford in Improvement Company v. Munson, 14 Wall. 442,
“Formerly it was held that if there was what is called a scintilla of evidence in support of a case the judge was bound to leave it to the jury; but recent decisions of high authority have established a more reasonable rule— that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”
As is also the language of Mr. Justice Miller in Pleasants v. Eant, 22 Wall. 120, 22 L. Ed. 780, another case often cited, where, after citing Improvement Co. v. Munson and other cases, he states the rule with more precision by a distinct exclusion, thus:
“In the discharge of this duty it is the province of the court, either before or after the verdict, to decide whether the plaintiff! has given evidence sufficient to support or justify a verdict in his favor; not whether on all the ■evidence the preponderating weight is in his favor — that is the business of the jury — but, conceding to all the evidence offered the greatest probative force which, according to the law of evidence, it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court, after a verdict, to set it aside and grant a new trial” — and makes the matter clear.
We think the whole subject may be shortly summed up by starting with the incontestable datum that the Supreme Court has never intended to propound and perpetuate two inconsistent rules for the guidance of the trial judge. It has by distinct and definite rulings declared that, if there is any substantial evidence bearing upon the issue to which the jury might in the proper exercise of its function give credit, the court cannot rightfully direct the jury to find in opposition to such evidence. Among the many cases to this effect are: Jones v. East Tenn. Ry., 128 U. S. 443, 9 Sup. Ct. 118, 32 L. Ed. 478; Washington, etc., Railroad v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Richmond & Dan-ville Railroad v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642; Gardner v. Michigan Central R. Co., 150 U. S. 361, 14 Sup. Ct. 140, 37 L. Ed. 1107.
If this proposition is established, it follows that the more general language used by the court in other cases should be construed consistently with the definitely stated rule. If it be urged that the argument might be conversely stated, and that the last-mentioned cases might be taken as stating the rule and the former be construed consistently with the latter, the answer is that the former are explicit and definite, and cannot be reconciled with the rule which the latter are supposed to authorize. We are not aware of any case where the Supreme Court has by actual decision declared that the trial judge may, upon his own view, direct the verdict, where there is a positive conflict in the evidence upon an issue material to the controversy. And by “evidence” we mean something of substance and relevant consequence, and not vague, uncertain, or irrelevant matter not carrying the quality of “proof” or having fitness to induce conviction. Such a case was Riley v. Rouisville & N. R. Co.
The result is that the judgment must be reversed, with costs, and a new trial awarded.