Empire State Cattle Company v. Atchison, Topeka Santa Fe Railway Company No 178 Minnesota Dakota Cattle Company v. Atchison, Topeka Santa Fe Railway Company No 179

• Decision Date: 04 May 1908
• Docket Number: 179,Nos. 178,s. 178
• Citation: 28 S.Ct. 607,52 L.Ed. 931,210 U.S. 1
• Parties: EMPIRE STATE CATTLE COMPANY, W. E. Waite, E. F. Waite, et al., Petitioners, v. ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY. NO 178. MINNESOTA & DAKOTA CATTLE COMPANY, Petitioner, v. ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY. NO 179
• Court: U.S. Supreme Court

210 U.S. 1

28 S.Ct. 607

52 L.Ed. 931

EMPIRE STATE CATTLE COMPANY, W. E. Waite, E. F. Waite, et al., Petitioners,

v ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY.

NO 178.

MINNESOTA & DAKOTA CATTLE COMPANY, Petitioner,

v. ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY.

NO 179.

Nos. 178, 179.

Argued March 13, 16, 17, 1908.

Decided May 4, 1908.

Messrs. James S. Botsford, Buckner F. Deatherage, and Odus G. Young for petitioners in No. 178.

Mr. R. E. Ball for petitioners in No. 179.

[Argument of Counsel from pages 2-4 intentionally omitted] Messrs. Gardiner Lathrop, Robert Dunlap, William R. Smith, and C. Angevine for respondent.

[Argument of Counsel from pages 4-6 intentionally omitted] Mr. Justice White delivered the opinion of the court:

With the object of saving them from destruction by the flood which engulfed portions of Kansas City on May 31 and the first week of June, 1903, more than 3,000 head of cattle belonging to the petitioners, which were in the Kansas City stock yards, were driven and crowded upon certain overhead head viaducts in those yards. For about seven days, until the subsidence of the flood, they were there detained, and could not be properly fed and watered. Many of them died and the remainder were greatly lessened in value. These actions were brought by the petitioners to recover for the loss so sustained, upon the ground that the cattle were in the control of the defendant railway company as a common carrier, and that the loss sustained was occasioned by its negligence.

The railway company defended in each case upon the ground that, before the loss happened, it had delivered the cattle to a connecting carrier; but that, if the cattle were in its custody, it was without fault, and the damage was solely the result of an act of God; that is, the flood above referred to.

As the cases depended upon substantially similar facts and involved identical questions of law, they were tried together, and at the close of the evidence the trial court denied a peremp- tory instruction asked on behalf of the plaintiffs, and gave one asked on behalf of the railway company. 135 Fed. 135.

While there was some contention in the argument as to what took place concerning the requests for peremptory instructions, we think the bill of exceptions establishes that, at the close of the evidence, the plaintiffs requested a peremptory instruction in their favor, and, on its being refused, duly excepted and asked a number of special instructions, which were each in turn refused, and exceptions were separately reserved, and the court then granted a request for a peremptory instruction in favor of the railway company, to which the plaintiffs excepted.

On the writs of error which were prosecuted from the circuit court of appeals for the eighth circuit, that court affirmed the judgment on the ground that, as both parties had asked a peremptory instruction, the facts were thereby submitted to the trial judge; and hence, the only inquiry open was whether any evidence had been introduced which tended to support the inferences of fact drawn by the trial judge from the evidence. One of the members of the circuit court of appeals (Cicuit Judge Sanborn) did not concur in the opinion of the court, because he deemed that, as the request for a peremptory instruction, made on behalf of plaintiffs, was followed by special requests seeking to have the jury determine the facts, the asking for a peremptory instruction did not amount to a submission of the facts to the court, so as to exclude the right to have the case go to the jury in accordance with the subsequent special requests. He, nevertheless, concurred in the judgment of affirmance, because, after examining the entire case, he was of opinion that prejudicial error had not been committed, as the evidence was insufficient to have justified the submission of the issues to the jury. 77 C. C. A. 601, 147 Fed. 457.

The cases are here because of the allowance of writs of certiorari. They present similar questions of fact and law, were argued together, and are, therefore, embraced in one opinion. The scope of the inquiry before us needs, at the outset, to be accurately fixed. To do so requires us to consider the question which gave rise to a division of opinion in the circuit court of appeals. It if be that the request by both parties for a peremptory instruction is to be treated as a submission of the cause to the court, despite the fact that the plaintiffs asked special instructions upon the effect of the evidence, then, as said in Beuttell v. Magone, 157 U. S. 154, 39 L. ed. 654, 15 Sup. Ct. Rep. 566, 'the facts having been thus submitted to the court, we are limited, in reviewing its action, to the consideration of the correctness of the finding on the law, and must affirm if there by any evidence in support thereof.' If, on the other hand, it be that, although the plaintiffs had requested a peremptory instruction, the right to go to the jury was not waived in view of the other requested instructions, then our inquiry has a wider scope; that is, extends to determining whether the special instructions asked were rightly refused, either because of their inherent unsoundness, or because, in any event, the evidence was not such as would have justified the court in submitting the case to the jury. It was settled in Beuttell v. Magone, supra, that where both parties request a peremptory instruction and do nothing more, they thereby assume the facts to be undisputed, and, in effect, submit to the trial judge the determination of the inferences proper to be drawn from them. But nothing in that ruling sustains the view that a party may not request a peremptory instruction, and yet, upon the refusal of the court to give it, insist, by appropriate requests, upon the submission of the case to the jury, where the evidence is conflicting, or the inferences to be drawn from the testimony are divergent. To hold the contrary would unduly extend the doctrine of Beuttell v. Magone, by causing it to embrace a case not within the ruling in that case made. The distinction be tween a case like the one before us and that which was under consideration in Beuttell v. Magone has been pointed out in several recent decisions of circuit courts of appeals. It was accurately noted in an opinion delivered by Circuit Judge Severens, speaking for the circuit court of appeals of the sixth circuit, in Minahan v. Grand Trunk Western R. Co. 70 C. C. A. 463, 138 Fed. 37, 41, and was also lucidly stated in the concurring opinion of Shelby, Circuit Judge, in McCormack v. National City Bank, 73 C. C. A. 350, 142 Fed. 132, where, referring to Beuttell v. Magone, he said (p. 351):

'A party may believe that a certain fact which is proved without conflict or dispute entitles him to a verdict. But there may be evidence of other, but controverted, facts, which, if proved to the satisfaction of the jury, entitles him to a verdict, regardless of the evidence on which he relies in the first place. It cannot be that the practice would not permit him to ask for peremptory instructions, and, if the court refuses, to then ask for instructions submitting the other question to the jury. And if he has the right to do this, no request for instructions that his opponent may ask can deprive him of the right. There is nothing in Beuttell v. Magone, supra, that conflicts with this view when the announcement of the court is applied to the facts of the case as stated in the opinion.

'In New York there are many cases showing conformity to the practice announced in Beuttell v. Magone, but they clearly recognize the right of a party who has asked for peremptory instructions to go to the jury on controverted questions of facts if he asks the court to submit such questions to the jury. Kirtz v. Peck, 113 N. Y. 226, 21 N. E. 130; Sutter v. Vanderveer, 122 N. Y. 652, 25 N. E. 907.

'The fact that each party asks for a peremptory instruction no find in his favor does not submit the issues of fact to the court, so as to deprive the party of the right to ask other instructions, and to except to the refusal to give them, nor does it deprive him of the right to have questions of fact submitted to the jury if issues are joined on which conflicting evidence has been offered. Minahan v. Grand Trunk Western R. Co. 70 C. C. A. 463, 138 Fed 37.'

From this it follows that the action of the trial court in giving the peremptory instruction to return a verdict for the railway company cannot be sustained merely because of the request made by both parties for a peremptory instruction, in view of the special requests asked on behalf of the plaintiffs. The correctness, therefore, of the action of the court in giving the peremptory instruction depends not upon the mere requests which were made on that subject, but upon whether the state of the proof was such as to have authorized the court, in the exercise of a sound discretion, to decline to submit the cause to the jury. That is to say, the validity of the peremptory instruction must depend upon whether the evidence was so undisputed or was of such a conclusive character as would have made it the duty of the court to set aside the verdicts if the cases had been given to the jury and verdicts returned in favor of the plaintiff. McGuire v. Blount, 199 U. S. 142, 148, 50 L. ed. 125, 130, 26 Sup. Ct. Rep. 1, and cases cited; Marande v. Texas & P. R. Co. 184 U. S. 191, 46 L. ed. 495, 22 Sup. Ct. Rep. 340, and cases cited; Southern P. Co. v. Pool, 160 U. S. 440, 40 L. ed. 486, 16 Sup. Ct. Rep. 338, and cases cited.

To dispose of this question requires us to consider somewhat in detail the origin of the controversy, the contracts of shipment from which the controversy arose, and the proof which is embodied in the bill of exceptions relied on to justify the inference of liability on the part of the railway company.

The action brought by the Minnesota & Dakota Cattle Company concerned 1,635 head of cattle,...