Howard v. Louisiana & A. Ry. Co.

• Decision Date: 23 May 1931
• Docket Number: No. 5941.,5941.
• Citation: 49 F.2d 571
• Parties: HOWARD v. LOUISIANA & A. RY. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

49 F.2d 571 (1931)

HOWARD v. LOUISIANA & A. RY. CO.

No. 5941.

Circuit Court of Appeals, Fifth Circuit.

April 30, 1931.

Rehearing Denied May 23, 1931.

Otis W. Bullock, of Shreveport, La., and S. P. Jones, of Marshall, Tex., for appellant.

R. F. White, of Alexandria, La., and A. L. Burford and C. Huffman Lewis, both of Shreveport, La., for appellee.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, plaintiff below, sued the defendant railway company under the Federal Employers' Liability Act (45 USCA §§ 51-59) for alleged injuries claimed to have been suffered by him while in the defendant's employ as a brakeman.

At the close of all the evidence a motion for a directed verdict in favor of the defendant was presented and argued, and the court, stating that if a substantial verdict for plaintiff was rendered by the jury the court would have to set same aside as contrary to the law and the evidence, granted the motion.

To the action of the court in refusing to submit the case to the jury on issues presented in charges requested by plaintiff, and in instructing a verdict for the defendant plaintiff duly excepted, and from the judgment on the verdict, this appeal is taken.

Appellee has filed a motion to strike plaintiff's bills of exceptions as not filed in time. The point made is that though the bills were settled, ordered filed, and filed during the same term of court at which the cause was tried, they were filed too late because of the fact that plaintiff, having procured an order allowing forty two days within which to prepare and settle his bills of exceptions, did not file them within that time; that by procuring the order plaintiff deprived the court of its jurisdiction to allow, approve, and order his bills of exceptions filed at any time during the term.

The point is without merit. That the preliminary order granting forty-two days has no effect upon the inherent power of the court at any time during the term to allow, approve, and order filed bills of exceptions is too elementary to require citation of authorities. The motion to strike is overruled.

On the merits of the appeal the single question is presented, whether the court had the power, in the state of the evidence, to direct a verdict for defendant. Plaintiff insists that the action of the court has deprived him of that substantial right of trial by jury guaranteed by the Seventh Amendment to all litigants in the courts of the United States in suits at common law.

He insists that since there was testimony, though given by himself, that not he but other employees were guilty of the negligence which caused the collision, and that he received substantial injuries as the result of it, he was entitled to have a jury verdict on the issues tendered. Defendant vigorously opposes this view, contending that the plaintiff's evidence was wholly discredited by the testimony of the other witnesses in the case both upon the issue of negligence and of injury, and that the evidence so overwhelmingly preponderated in its favor that the district judge was right in taking the case from the jury. It says, and the contention is supported by the testimony of its witnesses, that the fault which brought about the conditions complained of was that of the plaintiff himself. That he was the rear brakeman whose duty it was to attend to the setting of the brakes and to observe and guard against dangerous conditions at the rear of the train, and that having brought about by his own negligence the very conditions which caused the injury, he may not recover. It points to the finding of the district judge that though there has been some testimony on the part of plaintiff that Brakeman Nash was in charge of the rear end of the train instead of plaintiff himself, I think that is thoroughly disproved by all the evidence in the case" and cites Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 36 S. Ct. 406, 60 L. Ed. 732; I. C. Ry. Co. v. Skaggs, 240 U. S. 66, 36 S. Ct. 249, 60 L. Ed. 528; New York, N. H. & H. R. Co. v. Murphy (C. C. A.) 204 F. 420.

It further contends, and points to the testimony of its witnesses and the statement of the trial judge, that "if a substantial verdict is returned it would have to be set aside" in support of the contention that the proof overwhelmingly establishes that plaintiff in fact received no injury at the time in question; that he was a malingerer; and that he has had a past career as such.

Notwithstanding that, upon the point of negligence, plaintiff, though admitting that his regular position was that of rear brakeman, testified positively that because of his inexperience on that run he and Nash had exchanged places, and that at the time of the happening of the conditions which caused the injury Nash and not he was acting as rear brakeman and upon the point of injury testified with unshaken persistence to the fact that he had received injuries, denied his ever having been a malingerer, and by his own testimony supported by that of a physician made out a case of substantial injury, defendant, quoting from United Central Oil Corporation v. Helm (C. C. A.) 11 F.(2d) 760, 762, "It is well settled that the rule is this: Whenever it is clear that, if the jury should render a verdict for one party, the judge would be obliged to grant a new trial, in the exercise of sound discretion, it is his duty to direct a verdict for the other party," contends that under this rule since the district judge did not believe the testimony of plaintiff to be true and had made up his mind that if the jury should return a substantial verdict in plaintiff's favor he would have to set it aside, it was his duty not to let the case go to the jury, but in the first instance to direct a verdict for the defendant.

Defendant's contention confuses and seeks to blend two powers and functions possessed by a district judge presiding over a jury trial each, entirely separate and distinct from the other: The power primarily to instruct a verdict for want of evidence, recognized in Barney v. Schmeider, 9 Wall. 248, 251, 19 L. Ed. 648, "It is possible to have a jury trial in which the plaintiff, having failed to offer any evidence at all, or any competent evidence, the jury finds for the defendant for that very reason. And in such case it is strictly correct, if the plaintiff does not take a non-suit, for the court to instruct the jury to find for the defendant," and the power always recognized as resident at common law in the trial judge to set a verdict aside when in the opinion of...