232 F. 662 | 1st Cir. | 1916
In this opinion the word "plaintiff” means the plaintiff in the District Court, and the word “defendant” means the defendant in that court.
There is also no question that if the defendant had furnished suitable drags at the hand of- its servants, who were the coemployes of the plaintiff, so that any failure to use the drags was merely a failure on the part of his coservants, this fact would have been a defense to the defendant, whether the cause of action was based on the statutes of New Mexico or rested on the common law. The plaintiff testified that no such drags were furnished by the defendant, and he had never seen one in the mine; and one question is whether or not the testimony of the plaintiff, whose testimony was wholly unsupported, should have been accepted by the jury or should be set aside by this court. That proposition we will take up in its proper order.
The amount involved was a very large one; the injuries to the plaintiff having been very substantial, and the judgment rendered in his favor having been for $15,325. While the injuries occurred in New Mexico, the trial was at Portland, Me., and occupied several days, with many controversies and numerous exceptions, which, however, so far as we are concerned, on sifting out come down to few propositions.
The first question arises out of the fact that there were originally two counts in the plaintiff’s declaration, one apparently based on the local statute, which required a drag, and the other based on the common law, which made the defendant responsible on the proposition substantially to the effect that the absence of a drag was, under the circumstances we have referred to, a failure to provide suitable equipment. There seems to have been some uncertainty as to the steps
The propositions raised by the assignment of errors in reference to this matter of amendments are entirely of a general character. The bulk of them relate to the matter of proof with reference to the count as amended, which does not touch any of the questions now raised to which we have referred. Among other things, the assignment says that there is no testimony that the place where the plaintiff was engaged in mining of coal was unsafe. This does not relate to the matter of making the amendments, but to the propositions which came in issue after the amendments were made, and which were met by the fact that the matters covered by the amendments were matters of the kind to which we have already referred as being what is imposed by law on employers with reference to what are usual, customary, and simple methods of avoiding dangers.
“The facts are decided by the jury in the first instance. If the jury return a general verdict, clearly against the weight of evidence, or assessing exorbitant damages, the court in which the trial is had may set aside the verdict and order a new trial. But a court of error, to which the case is brought by bill of exceptions, or appeal, on matter of law only, cannot set aside the verdict, unless there is no evidence from which the conclusion of fact can be legally inferred.”
Indeed, in the earliest cases in the Supreme Court, it was doubted whether, after all, a motion to set aside a verdict as against evidence was not an appeal on a mere question of fact as to which the Supreme Court could have had no jurisdiction (Marine Insurance Company v. Young, 5 Cranch, 187, 190, 3 L. Ed. 74, decided in 1809); although in the same case it was finally concluded that it would be improper for the Supreme Court to determine whether the inferior court ought or ought not to have' granted the motion for a new trial on the ground that the verdict was contrary to evidence. In Maryland Insurance Company v. Ruden’s Adm’r, 6 Cranch, 338, 340, 3 L. Ed. 242, it was ruled that .the party against whom a verdict was rendered had no remedy except a new trial to be granted by the court in which the verdict was found. This was strictly the English rule; but, after all, it was settled, as in the case first cited, that it was only where there was no evidence, or there was nothing which, with all the inferences which the jury could draw from it, would sustain a verdict, that the Supreme Court had jurisdiction over the question.
Until it was so settled, the court had some difficulty in pointing out the difference in practice between tire state courts and the Federal courts on this question. Brown v. Clarke, 4 How. 4, 15, 11 L. Ed. 850. Finally, the whole matter got settled down, as we have said; but, ini Railway Company v. Heck, decided at the October term, 1880, 102 U. S. 120, 26 L. Ed. 58, Chief Justice Waite-said: “Our power is confined to exceptions actually taken at the trial,” adding some explanation thereto which is not important here. Also in Randall v. Baltimore & Ohio Railroad Company, decided September 10, 1883, 109 U. S. 478, 482, 3 Sup. Ct. 322, 324 (27 L. Ed. 1003) in an opinion by Mr. Justice Gray, it was declared that “it is the settled law of this court that,, when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict fox-
These expressions in this last case are cited in Louisville & Nashville Railroad Company v. Woodson, 134 U. S. 614, 621, 10 Sup. Ct. 628, 630 (33 L. Ed. 1032) as furnishing a rule by which the jurisdiction of the Supreme Court over exceptions can be measured; that is to say, that such exceptions may justly be taken “when the evidenccl given at the trial,” with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict, a writ of error will lie to the Supreme Court. It may be rather strong to say, as in the language of Sehuchardt v. Allen, 1 Wall. 359, 371 (17 L. Ed. 642) that “a motion for a new trial in the courts of the United States is addressed to the sound discretion of the tribunal which tried the case, and to grant or refuse it cannot be made the subject of exception”; but it is safe to say that the action of the trial court cannot be brought to the Supreme Court for review, unless there has been some specific conclusion on its part granting or refusing a new trial on the ground that it is either for or against the weight of the evidence.
Certainly it is safe to say that, in a case like the present, where the real issue was whether or not the drags were furnished by the defendant, and as to which issue the testimony was conflicting, that of the most important witness being directly to the contrary, no refusal to rule that the evidence was insufficient to warrant a verdict can be held erroneous in this court, unless the record shows express application for such ruling made to the trial court upon that specific ground alone, and distinctly raising the question as to the weight of the evidence. In the present case there was no such specific proceeding in the trial court. There were several motions for a direction of a verdict, if a mere request for such direction could be regarded as meeting the requirements of the case. But they were, however, all deficient. They are briefly stated in the introductory current review of the proceedings of the trial court; but theywere stated fully, subsequently, by the exceptions drawn out at length. One motion was based on a request to direct a verdict for the defendant on the second count, which had been abandoned by the plaintiff with the express statement on his part that he was proceeding on the first count only. Another was based on a request that the trial court direct a verdict for the defendant on the first count, which was coupled with another request for a general direction of a verdict for the defendant on the entire case, without distinguishing between the counts. None of these requests for verdicts were clean requests on the ground that the evidence, or the weight of the evidence, was not with the defendant; but all were coupled with certain propositions mingling with the motions
The foregoing disposes of what are really the essential questions in this case. The defendant submits to us for our consideration the ruling of the court instructing the j ury apparently to the effect that the disregard of the New Mexico statutes on the part of the defendant was conclusive as against the defendant. This ruling would make some difficulty if it had been made the subject of any assignment of alleged error; but, as there is no such assignment, the question involved in it is not before us.
In like manner, the proof of sundry conversations with the plaintiff which were objected to, but were admitted, were, so far as we can see from anything the record shows, entirely immaterial and harmless. They related to a conversation which may have been entirely friendly, and nothing more than that. The defendant did not go far enough in connecting the surroundings of the case, either by the statements of counsel or otherwise, so that we can apprehend their effect.
The judgment of the District Court is affirmed, yith interest; and defendant in error recovers his costs of appeal.