193 F. 950 | 5th Cir. | 1912
The following excerpt from the opinion on the former trial shows the question that we held should have been submitted to the jury:
“For the purposes of this decision we may assume — a fact that we do not decide — that the evidence was sufficient to justify the court in holding, or the jury in finding, that Herr was negligent in his conduct. Such holding or-finding would not in our opinion be conclusive of the case. If Smith, the engineer in charge of the engine attached to train No. 256, did see, or could by the exercise of ordinary or reasonable care have seen, standing on the track, the caboose in which Herr sat and on which he was killed far enough before striking it to have avoided the collision by stopping his train, the plaintiff'*951 •would be entitled to recover, notwithstandinc; the previous negligence of ITcyt. The rule seems to be unquestioned that notwithstanding the person injured was guilty of negligence in exposing himself to an injury at the hands or' the defendant, yet, if the defendant discovered the exposed situation oí the person in time by the exercise of ordinary or reasonable care after so discovering it to have avoided the injury, and nevertheless failed to do so, the contributory negligence of the person injured does not bar a recovery of damages from the defendant.” 174 Fed. 913, 98 C. C. A. 555.
The court submitted the question indicated to the jury, and there is no exception to the manner in which it wa,s submitted. The contention is that the court should have directed a verdict for die defendant. We had already decided on substantially the same fads that the trial court should have submitted to the jury the question whether or not the defendant, by the exercise of ordinary or reasonable care after the discovery of the decedent’s perilous position, could have avoided killing hitn. 174 Fed. 943, 98 C. C. A. 550.
We are of the opinion that, if the defendant wished to defend on the ground that the plaintiff sued in the wrong capacity, the defense should have been presented before a trial on the merits. If the point had been raised at the beginning, the declaration, if necessary, could have tíeen amended. It would be manifestly unjust to permit the defendant to hold this defense in reserve to be disclosed only in the event that the jury, in a trial on the merits, found for the plaintiff. Texas & Pacific Ry. Co. v. Lacey, 185 Fed. 225, 107 C. C. A. 331; Texas & Pacific Ry. Co. v. Jackson (C. C. A. 5th Circuit) 193 Fed. 948, decided February 6, 1912; M., K. & T. R. R. Co. v. Wulf (C. C. A. 5th Circuit) 192 Fed. 919, decided December 11, 1911. In the last case cited, supra, this court held that where the plaintiff was the sole beneficiary and entitled to all the damages resulting from the negligent killing of her son, in the absence of objections made in limine, it was immaterial whether the suit to recover the damages was prosecuted by her individually or as administratrix or in both capacities.
Affirmed.