Patterson v. Jacksonville Traction Co.

213 F. 289 | 5th Cir. | 1914

MAXEY, District Judge

(after stating the facts as above).

It is insisted by the defendant that the action of the trial court in giving the peremptory instruction was right, because the plaintiffs failed to prove; (1) That the defendant did the wrongful act alleged in the declaration, and (2) that the plaintiff Mrs. Patterson actually sustained the injury alleged in the declaration.

[1] As to the reason first assigned, it may be said that the record fails to disclose that proof was offered by the plaintiffs to show that the car, which ran into'the one in which Mrs. Patterson was sitting at the time of the accident, was owned and operated by the defendant. But the declaration does allege in plain language that, while the car was stopped and standing, and while Mrs. Patterson was in the car as a passengei'—

“another street car of the defendant," by and through the negligence and carelessness of the defendant, was run into the rear of the car upon which Mrs. Patterson was riding, with great force and violence.”

To the declaration the only plea interposed by the defendant was one of not guilty, which, since the adoption by the Supreme Court of Florida of rule 71 of Rules of Circuit Court in Common-Law Actions, operates as a denial only of the breach of duty or wrongful act. And in the present case the plea admits, in view of the allegations of the declaration, that the defendant owned and operated both cars at the time of the accident which resulted in Mrs. Patterson’s injuries, and the record contains evidence tending strongly to prove negligence as alleged.

Pretermitting the illustrative examples of rule 71, the rule itself is in the following words:

“In actions for torts, tlie plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by defendant, and not of the facts stated in the inducement, and no other defense than such denial shall be admissible under that plea; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration.”

Rule 71 is a copy of the English rule on the same subject; and, in view of the Florida authorities and the following English cases, it seems clear to us that proof of the facts complained of was not essential under the plea of not guilty. If the defendant desired to traverse them, it might have done so by special plea containing the proper averments.. See A. C. L. R. R. Co. v. Crosby, 53 Fla. 400, 43 South. 318; Jacksonville Electric Company v. Sloan, 52 Fla. 288, 42 South. 516; Taverner v. Little, 5 Bing. N. C. 678; Dunford v. Trattles, 12 M. & W. (Exchequer) 529; Hart v. Crowley, 40 Eng. Com. Law, 77.

[2] Pursuing the subject further, we are not disposed to rest our conclusion solely upon the question of the quantum of proof necessary to be introduced under the plea of not guilty. The record discloses that the plaintiff was a passenger on one of the defendant’s cars, and that, at the time she claims to have been injured, she was in the exercise of due care in looking out for her own safety. What was then the duty of the defendant? It devolved upon it to show by proof that the injury was unavoidable by human foresight. But the defendant introduced no testimony on that point. In Gleeson v. Virginia Midland Railroad Co., 140 U. S. at page 443, 11 Sup. Ct. 862, 35 L. Ed. 458, it was said by the court:

“Since tbe decisions in Stokes v. Saltonstall, 13 Pet. 181 [10 L. Ed. 115], and Railroad Company v. Pollard, 22 Wall. 341 [22 L. Ed. 877], it bas been settled law in this court that tbe happening of an injurious accident is, in passenger cases, prima facie evidence of negligence on the part of tbe carrier, and that (tbe passenger being biinseif in tbe exercise of due care) tbe burden then rests upon tbe carrier to show that its whole duty was performed, and that tbe injury was unavoidable by human foresight. Tbe rule announced in those cases bas received general acceptance, and was followed at tbe present term in Inland & Seaboard Coasting Company v. Tolson, 139 U. S. 551 [11 Sup. Ct. 653, 35 L. Ed. 270].”

See, also, Southern Pacific Co. v. Cavin, 144 Fed. 348, 75 C. C. A. 350, and authorities cited.

[3] It thus appears that the case could not properly be withdrawn from the jury on the ground that the plaintiffs had failed to establish negligence on the part of the defendant; and it becomes our duty to consider the second ground urged by the defendant to sustain the action of the trial court, to wit, that the plaintiffs failed to prove that Mrs. Patterson actually sustained the injuries alleged in the declaration. Touching this objection it is only necessary to observe that there was testimony tending clearly to show that Mrs. Patterson suffered injuries as a result of the accident. The nature and extent of her injuries was testified to by several witnesses, one of them stating that:

“Before she was hurt she was very energetic and could go about her housework or any duties she had to perform, and that is different now, and I should say she has aged 10 or 15 years.”

Fet it be admitted, but we would not be understood as so finding, that it was shown by the physicians testifying, on the part of the defendant, that Mrs. Patterson was not hurt as claimed; that her injuries were purely imaginary and without any real basis in fact; that the evidence preponderated in favor of the defendant—still these and kindred questions should have been submitted, under proper instructions, to the consideration of the jury, whose duty it is to determine controverted questions of fact. The rule is thus stated by the Supreme Court in Texas & Pacific Railway Co. v. Cox, 145 U. S. at page 606, 12 Sup. Ct. 909, 36 L. Ed. 829:

“The case should not have been withdrawn from the jury unless the conclusion followed, as matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish. Dunlap v. Northeastern Railroad, 130 U. S. 649, 652 [9 Sup. Ct. 647, 32 L. Ed. 1058]; Kane v. Northern Central Railway, 128 U. S. 91 [9 Sup. Ct. 16, 32 L. Ed. 339]; Jones v. East Tennessee, Virginia & Georgia Railroad, 128 U. S. 443 [9 Sup. Ct. 118, 32 L. Ed. 478].”

In Big Brushy Coal & Coke Co. v. Williams, 176 Fed. 532, 99 C. C. A. 105, it was said by the Circuit Court of Appeals for the Sixth Circuit :

“It was not the province of the court below to weigh the evidence, when considering the motion to direct at the close of all the testimony. The motion must be overruled, where the testimony presented by the plaintiff, if believed by the jury, will support the petition. Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 Fed. 463, 477, 20 C. C. A. 596; Central Union Depot & Ry. Co. v. Mansfield, 169 Fed. 614, 95 C. C. A. 142; Norfolk & W. Ry. Co. v. Hazelrigg, 170 Fed. 551, 95 C. C. A. 637; L. S. & M. S. Ry. Co. v. J. Eder, Jr. (decided December 7, 1909) 174 Fed. 944 [98 C. C. A. 556]; Noble v. C. Crane & Co., 169 Fed. 55, 94 C. C. A. 423; Van Stone v. Stilwell & Bierce Mfg. Co., 142 U. S. 128, 135, 12 Sup. Ct. 181, 35 L. Ed. 961. In our opinion there was such testimony. The weight of the evidence and the extent and effect of contradiction present questions for the jury. Crumpton v. United States, 138 U. S. 361, 363, 11 Sup. Ct. 355, 34 L. Ed. 958.”

See, also, McIntyre v. Modern Woodmen of America, 200 Fed. 1, 121 C. C. A. 1; Haynie v. T. C. I. & R. Co., 175 Fed. 55, 99 C. C. A 71.

For the reasons stated we are of the opinion that the trial court erred in instructing the jury to return a verdict for the defendant. The judgment should therefore be reversed, and the cause remanded for a new trial; and it is so ordered.