Illinois Terminal R. Co. v. Friedman

• Decision Date: 17 February 1954
• Docket Number: No. 14817.,14817.
• Citation: 208 F.2d 675
• Parties: ILLINOIS TERMINAL R. CO. v. FRIEDMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

208 F.2d 675 (1953)

ILLINOIS TERMINAL R. CO. v. FRIEDMAN.

No. 14817.

United States Court of Appeals Eighth Circuit.

November 30, 1953.

Supplemental Opinion December 21, 1953.

Rehearing Denied February 17, 1954.

Robert C. Ely, St. Louis, Mo. (Wayne Ely, Jos. L. Badaracco, and Ely & Ely, St. Louis, Mo., were on the brief), for appellant.

Everett Hullverson, St. Louis, Mo. (Orville Richardson and Kramer & Chused, St. Louis, Mo., were with him on the brief), for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

Rehearing Denied February 17, 1954. See 210 F.2d 229.

PER CURIAM.

This is an appeal from a judgment for the plaintiff (appellee) in a personal injury action tried to a jury. Two questions were presented to this Court for review: (1) whether the defendant was entitled to a directed verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law; and (2) whether the District Court committed prejudicial error in admitting certain evidence at the trial.

We find nothing in the record which shows that the District Court had jurisdiction of this case. Diversity of citizenship was not pleaded or proved. Conceivably, if it had been proved, although it was not alleged in the complaint, we could have treated the complaint as amended to conform to the proof. While the plaintiff testified that she resided in Missouri, there was no evidence as to her citizenship or that of the defendant. Since the District Court did not question its jurisdiction, but tried the case on the merits, and since the defendant did not challenge the jurisdiction of that court and has invoked our jurisdiction by taking this appeal, it is reasonable to suppose that diversity of citizenship did in fact exist.

A federal appellate court, in a case under review, must satisfy itself not only of its own jurisdiction but also of that of the District Court. Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338. One who invokes the jurisdiction of a federal district court must allege in his pleading the facts essential to show jurisdiction. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135. We cannot be satisfied that the District Court had jurisdiction of this case, in the absence of a record affirmatively showing the existence of such jurisdiction.

Section 1653, Title 28 U.S.C.A., reads as follows:

"Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts."

If diversity of citizenship did in fact exist at the time this action was brought, and if the pleadings are amended to so show, we can decide the questions presented for review. See and compare, Keene Lumber Co. v. Leventhal, 1 Cir., 165 F.2d 815-819.

Leave is granted to the parties to amend the pleadings within thirty days to show that the District Court had jurisdiction of this action. If the pleadings are so amended, we will decide the questions presented for review, without further argument. If the pleadings are not so amended, the case will be remanded with directions that it be dismissed for want of jurisdiction.

Supplemental Opinion

SANBORN, Circuit Judge.

This is an appeal from a judgment for the plaintiff, Lillie Mae Friedman, in an action brought by her against the Illinois Terminal Railroad Company to recover for personal injuries which she sustained on March 14, 1951, at about 5:30 P.M., while driving an automobile westwardly over the defendant's McKinley Bridge, which crosses the Mississippi River from Illinois to St. Louis, Missouri.¹ She was on her way from Madison, Illinois, to St. Louis. On the westerly span of the bridge, which is on the Missouri side of the river, she lost control of the automobile, which skidded and collided with a truck coming from the opposite direction. Generally stated, the claim upon which her complaint was based was that the accident was due to the negligent construction and maintenance by the defendant of the surface of the bridge.

The defendant denied that it was negligent in any respect, and alleged that the plaintiff was guilty of contributory negligence. The issues were tried to a jury. The defendant moved for a directed verdict in its favor at the close of the evidence. The court denied the motion. The jury returned a verdict for the plaintiff. A motion of the defendant for judgment notwithstanding the verdict or, in the alternative, for a new trial was thereafter denied, and this appeal followed.

Two questions are presented for decision: (1) whether the court erred in denying the motion of the defendant for a directed verdict made upon the ground that under the evidence the plaintiff was guilty of contributory negligence as a matter of law; (2) whether the court erred in admitting, over the defendant's objection, evidence as to the kind and quality of the surface used on the Eads Bridge, which crosses the Mississippi River at St. Louis.

The McKinley Bridge is a toll bridge which has three lanes for automobile traffic: two single outer lanes, one on each side of the main structure, and a double center or inner lane carrying traffic both ways. There are two sets of street car tracks in the inner lane. The outer lanes, which are separated from the inner lane by steel girders, are paved with black top. The inner lane is surfaced with planks or slabs made of an asphalt preparation manufactured by Carey Asphalt Company and used generally in road and bridge construction. Such planks have been continuously used to surface the McKinley Bridge since 1930. The planks run lengthwise on wood timbers. The defendant uses about three thousand of these planks a year for repairs and replacements. The McKinley Bridge carries a "tremendous" amount of traffic. The planks are subject to breakage. The surface of the bridge is slippery when wet and there are warning signs at each end, reading: "Slow. Drive Carefully. Slippery When Wet."

The plaintiff testified that on March 14, 1951, she had driven the automobile in suit, which was used by her husband in his business, from St. Louis to Madison, Illinois; that her married daughter was with her and they were returning to St. Louis about 5:30 in the evening; that there was the regular 5:30 traffic on the bridge; that the weather was damp and misty; that the surface of the road was slippery; that she was driving between 20 and 25 miles an hour, going west, straddling the south rail of the northerly street car tracks; that she could see several automobiles ahead of her and a truck coming; that she thought she "had better move over" to give more room; that she moved over about a foot, and, as she did so, she felt the front right wheel of the automobile fall in a hole; that it jerked the steering wheel to the right; that the car started to skid, and she tried to get it out of the skid by turning the wheel to the left, but did not succeed and kept skidding until her automobile collided with the truck coming toward her, the speed of which she estimated to be 20 or 25 miles an hour.

The plaintiff also testified that she was familiar with the condition of the bridge as to holes; that there were always holes in the bridge; that the holes were "just like you would take a plank out, and sometimes sort of beveled on the edges, around the tracks there is always holes"; that the surface of the bridge is always slippery when wet; that the hole into which the wheel of the car dropped was an inch and a half or two inches deep; that she did not see the hole and had no idea as to how long or how wide it was; that her automobile traveled 35 or 40 feet after the wheel dropped into the hole; that the automobile, its tires and equipment were in good condition; that she had driven automobiles for about thirty years and had been familiar with the roadway on the McKinley Bridge for twenty-four years; that it always had holes in various...