Cincinnati St. Ry. Co. v. Whitcomb

• Decision Date: 04 March 1895
• Docket Number: 251.
• Citation: 66 F. 915
• Parties: CINCINNATI ST. RY. CO. v. WHITCOMB.
• Court: U.S. Court of Appeals — Sixth Circuit

66 F. 915

CINCINNATI ST. RY. CO. v. WHITCOMB.

No. 251.

United States Court of Appeals, Sixth Circuit.

March 4, 1895

There is no inconsistency between a general verdict for the plaintiff, in an action for injuries caused by a collision with an electric street car, and a special finding that the injury was caused by a backing away of the car immediately after the collision, or a disagreement as to whether the motor of the car was reversed, for the purpose of backing before or after the collision took place.

Charles K. Whitcomb, a citizen of the state of Kentucky, recovered a verdict and judgment against the Cincinnati Street-Railway Company, a citizen of Ohio, in the circuit court of the United States for the Western division of the Southern district of Ohio, as damages for a personal injury. This is a proceeding to review that judgment. Whitcomb was a garden truck huckster, and in his business used a horse and wagon. The Cincinnati Street-Railway Company is engaged in the maintenance and operation of an electric street-car line running from Avondale, a suburb of Cincinnati, into the city by way of Hunt street. Whitcomb, on the 3d of August, 1893, stopped in front of a saloon on the west side of Hunt street, and went in. There are two tracks upon Hunt street at this point, and the width of the street from curb to curb is 46 feet, leaving about 16 feet between the outer rail of each track and the curb. The car which afterwards collided with Whitcomb was running from Avondale south into the city of Cincinnati on the west track. To the north of where Whitcomb's wagon stood the track curved to the west. From the curb at this point it was possible to see up the track from 200 to 400 feet. The street car was running at the rate of 8 miles an hour. Some 60 feet south of where Whitcomb's wagon stopped, on the same side of the street, was a broken-down slop-feed wagon, extending diagonally from the curb towards the railway track. Whitcomb testified that, when he came out of the saloon, he looked north up the track, and saw no street car; that he then got on his wagon, and, in order to avoid the malt wagon, drove towards the track; that, before he reached the track, he looked back again up the track. His wagon was covered, but the front side curtains were rolled up. The street car overtook Whitcomb when he was opposite the malt wagon, and between it and the track. Just where his left wheels were is made uncertain by the evidence, and whether the dashboard of the car struck the wagon, or the collision took place between the back wheels of the wagon and some of the side standards of the car after the dashboard of the car had passed the wagon, is not clear. Certain it is that the car crushed the huckster wagon against the heavy malt wagon without injuring Whitcomb, and that subsequently the car backed, and then moved forward again, and that, either in the backing or in the second forward movement, the wagon of Whitcomb was upturned, and he was injured. The evidence for the plaintiff supported his claim that his injury was caused by a second collision, while defendant adduced much testimony to show that there was no second collision, but that the upturning of the wagon and the injury to the plaintiff were caused by the backing alone. The motorman testified that Whitcomb turned suddenly across the track when the car was too near him to stop it; that, in order to facilitate the stopping, he not only put on the brake, but also reversed the motor; and that the backing of the car after the first collision was due to the reversal of the motor before the first collision. There was counter evidence tending to show that the motor was reversed after the collision, and that the backing was due to that reversal. The amended petition of plaintiff charged 'that the said defendant, by its servants, agents, and employes, was guilty of gross and wanton negligence in the following respects: That it negligently failed to ring the bell or sound the gong on its said electric car, so as to warn plaintiff of the approach of the same, and negligently failed to stop said car after plaintiff's perilous position was known, and when, by the exercise of reasonable care on its part, the said collision might have been prevented. By reason of these acts, and without negligence on the part of plaintiff, his wagon was struck by the defendant's said electric car, so that plaintiff was thereby, and by reason thereof, placed in a perilous position. Plaintiff says that while in said perilous position, and without negligence on his part, and without time or opportunity to extricate himself from said perilous position, the defendant, through its servants, agents, and employes in charge of said electric car, was guilty of further and additional gross and wanton negligence in the following respects: That it did, with full knowledge on its part of plaintiff's perilous position, cause said electric car to be backed a short distance, and then caused said car with great force and violence to be collided with the said horse and wagon of the said plaintiff, by reason of which last-named collision plaintiff was greatly damaged in his person, etc. And plaintiff further says that by reason of defendant's said negligence, through its servants, agents, and employes in charge of the running and operation of said electric car as aforesaid, his horse, drawing his said wagon, was killed, and his wagon broken and demolished, by reason of all which the plaintiff has been damaged in the sum of five thousand dollars.'

The jury returned a general verdict for the plaintiff, and also answered certain questions of fact put to them by the court, and failed to answer other questions as follows: 'First. Was the injury to the plaintiff and his wagon and his horse caused by the collision when the car first struck the wagon, or by the backing of the car after it struck the wagon? Answer: The injury to the horse and the wagon was due to the first collision, and the injury to the plaintiff was due to the backing out of the car. Second. If you find that the injury was caused by the backing of the car after it struck the wagon, you will please answer each of the following questions: (1) Was the motor reversed before the car struck the wagon? Answer: Disagree. (2) Was the motor reversed after the car struck the wagon, and did that reversal cause the backing? Answer: Disagree. (3) If not, what was the cause of the backing? Answer: Disagree. Third. After the backing of the car, did it, when again moved forward, strike plaintiff, his horse or wagon? If so, did that striking cause the injury complained of? Answer: No.' A motion was made on the part of the defendant for a special finding non obstante veredicto. This was overruled, and judgment entered for the plaintiff on the general verdict.

Kittredge, Wilby & Simmons and Paxton, Warrington & Boutet, for plaintiff in error.

W. H. Jackson and Simmons & Simmons, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge (after stating the facts).

The general verdict of the jury was evidently based on the finding that the injury to the plaintiff's person was caused by the negligent backing of the car after the first collision, and not be a second collision. It is argued that this is such a variance from the charge of negligence in the petition that judgment should have been entered for the defendant. The petition charged that the backing was negligent, and that the moving forward to the second collision was negligent, but ascribed the injury to the second collision. The evidence of the plaintiff tended to show that the injury was due to the second collision. The evidence of the defendant, however, tended to show that the injury was due to the backing alone.

Section 5294 of the Revised Statutes of Ohio provides that:

'No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as are just.'

Section 5295 provides:

'When the variance is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment, without costs.' Section 5296 provides:

'When the allegation of the claim or defense, to which the proof is directed, is unproved not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.'

In Hoffman v. Gordon, 15 Ohio St. 211, the petition charged defendant with flooding the plaintiff's cellar by obstructing the street, and the answer denied the charge. On the trial, evidence admitted without objection showed that the flooding was occasioned by defendant's wrongful opening of the...