186 F. 130 | 8th Cir. | 1911
Evidence on the part of plaintiff was to the effect that plaintiff was struck from behind upon the back and calf of the leg and thrown forward against one Erpenbach, who was directly in front of him. Plaintiff immediately on regaining his balance turned back, and saw Patterson moving the truck and no other person about the truck. Erpenbach, as soon as plaintiff was thrown against him, turned around and saw Patterson moving the truck and no other person with him. On the part of defendant the testimony was that the truck did not strike the plaintiff, but passed to one side of him, and, further, that two other persons, by the name of Chapman and Alexander, not in the employ of defendant, participated with Patterson in the movement of the truck. It is claimed on the part of defendant that there is no evidence to show that the truck did in fact strike the plaintiff, as neither plaintiff nor his witness Erpenbach saw the truck hit plaintiff, and that It cannot be said that defendant was shown to have been guilty of any negligence except by applying the doctrine of res ipsa loquitur. It is apparent from the evidence that there was nothing about the platform which could have, struck plaintiff in the back and leg as claimed excepting the truck in question, which was being pushed in the rear of plaintiff, and we think the evidence in this respect of such a substantial
“If you determine that Patterson himself was guilty of negligence in pushing the truck and that such negligence contributed to any injury which Zimmer then received, of course, the negligence of Chapman or Alexander is no defense for the express company in this action. It makes no difference how negligent Chapman was, and it makes no difference how negligent Alexander was, if Patterson himself was negligent and this negligence in handling the truck contributed to the accident, then the plaintiff is entitled to recover.”
This was a correct announcement of the law. The defendant would not be relieved from liability, if its agent Patterson was negligent, because the negligence of third pa-rties co-operated with such negligence in producing the injury to, plaintiff. For one whose negligence concurs in producing an injury to another is liable to the party injured. Shearman & Redfield on Neg. (5th Ed.) §§ 31, 122.
Complaint is made to various portions of the instructions of the court, and especially to that which eliminated or took from the jury all question as to the negligence of Chapman and Alexander. We cannot consider, however, any of defendant’s exceptions to the court’s instructions for the reason that they were not taken in time. The court instructed the jury on the 22d day of December, 1909, the jury returned their verdict on the 23d, and judgment was entered thereon on that day. Exceptions were not taken to the instructions until the 28th day of February, 1910 — two months after the trial.
“Tliis cause came on to be beard before tbe court on May 23rd, 1910, upon motion ol' tbe defendant for a new trial. After considering the evidence produced at said bearing, tbe arguments of counsel thereon, and the other evidence presented at said bearing, with the briefs of counsel thereon, it is now ordered that said motion be and the same is hereby denied.”
“An order granting or refusing a new trial, which the court has the jurisdiction or power to make, is discretionary and cannot be reviewed by a writ of error or appeal in the federal courts.” City of Manning v. German Ins. Co.. 4(5 C. C. A. 144, 107 Fed. 52.
Plaintiff in error cites and places reliance upon the case of Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. In that case the trial court excluded the affidavits offered in support of the motion for a new trial. The Supreme Court announced the rule of law as being that the allowance or refusal of a new trial rests in the sound discretion of the court, which cannot be made the subject of review by writ of error, but held that, as the trial court excluded the affidavits in support of the motion and did not consider them, the court in that respect committed an error and the action of the court in excluding the evidence offered in support of the motion for a new trial was subject to review.
In the case before us the court received the affidavits in evidence and based its ruling upon full consideration thereof, and its judgment overruling the motion is not subject to review.
The judgment is affirmed.