WA Hover & Co. v. Denver & RGWR Co.

• Decision Date: 21 February 1927
• Docket Number: No. 7171.,7171.
• Citation: 17 F.2d 881
• Parties: W. A. HOVER & CO. v. DENVER & R. G. W. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

17 F.2d 881 (1927)

W. A. HOVER & CO. v. DENVER & R. G. W. R. CO.

No. 7171.

Circuit Court of Appeals, Eighth Circuit.

February 21, 1927.

Mason A. Lewis, of Denver, Colo. (James B. Grant and Robert L. Stearns, both of Denver, Colo., on the brief), for plaintiff in error.

Walter M. Campbell, of Denver, Colo. (E. N. Clark, of Denver, Colo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and SCOTT and SANBORN, District Judges.

JOHN B. SANBORN, District Judge.

On June 15, 1920, W. A. Hover & Co. delivered, at Denver, Colo., to the receiver of the Denver & Rio Grande Railroad Company, to whose causes of action the Denver & Rio Grande Western Railroad Company has succeeded, a box containing two five-gallon cans of carbon bisulphide, an inflammable liquid, for transportation over its line of road from Denver to Mancos. For convenience, in this opinion, the parties will be given the same designations as they had in the court below; the Denver & Rio Grande Western Railroad Company being the plaintiff, and W. A. Hover & Co. being the defendant. The box was properly labeled with a red label, calling attention to the nature of its contents, and containing the usual warning. On the bill of lading the shipper certified that the shipment was packed according to the regulations of the Interstate Commerce Commission. The box was loaded into C. & W. C. car No. 1543, together with a quantity of miscellaneous light and heavy freight of other shippers. There were bath tubs, iron pipe, a reel of wire rope, iron cylinders of oxygen gas, iron barrels of lubricating oil, reels of wire, agricultural implement wheels, electrical equipment, etc. The car was the next to the last car of a train of 32 freight cars which traveled from Denver, via La Veta and La Veta Pass, to Ft. Garland. The train was inspected on June 17, 1920, at La Veta, La Veta Pass, Sierra, Russell, and Ft. Garland, which are stations a few miles apart. There was apparently nothing wrong with the car prior to its arrival at Ft. Garland. From La Veta Pass to Ft. Garland the road goes down a mountain grade and there are a number of curves. The rate of speed of the train varied from 12 to 18 miles an hour. The brakes were on going down the grade, the cars swayed and rocked, but no more than usual. At Ft. Garland, it was discovered that a liquid was dripping on the hot brake shoe of the rear wheel of the front truck of the car in which the box of carbon bisulphide was located, and was igniting, with a bluish flame, with a strong odor of sulphur, as it came in contact with the hot shoe. The conductor and brakemen of the train were unable to put it out. It communicated itself to the bottom of the car. The car was cut out of the train, and was completely destroyed.

The plaintiff paid claims of other shippers to the extent of $3,897.02, and repaired the damage to the track caused by the fire, at an expense of $35. The plaintiff then brought this action to recover its damages from the defendant on the ground that the fire was the sole and direct result of the shipper's negligence in using second-hand gasoline cans of 30-gauge metal for the shipment of the carbon bisulphide, in violation of a regulation of the Interstate Commerce Commission requiring not less than 28-gauge metal containers. It also claimed that it was deceived in accepting the shipment, by virtue of the certificate that it complied with the regulation. The defendant denied that the fire was the result of any negligence on its part, or that it was negligent in any respect, alleged that the plaintiff itself was negligent, and asserted a claim for $28, the value of the carbon bisulphide. It also denied any deception.

On the trial, the plaintiff introduced the regulation of the Interstate Commerce Commission requiring metal containers of at least 28-gauge for the shipment of carbon bisulphide, introduced evidence tending to show that the cans in which the carbon bisulphide was shipped were second-hand gasoline cans made for the Continental Oil Company and probably of 30-gauge metal, and introduced evidence tending to show the proper loading and transportation of the car, the fire resulting from the leaking of the carbon bisulphide from the car upon the hot brake shoe, the destruction of the car and its contents by the fire, the payment of the claims of other shippers, the value of the material which was used to repair the track, and rested. Thereupon the defendant also rested. Each party made a request for a directed verdict, and reserved the right to submit further requests for instructions, if a directed verdict was refused.

The request of the defendant was denied. It submitted further requests, which were also denied, and the court directed a verdict in favor of the plaintiff for the full amount asked. The defendant took proper exceptions to the denial of its request for a directed verdict, and the denial of its request for other instructions, and to the granting of the request of the plaintiff.

The first question to decide is whether the request by both parties for a peremptory instruction constituted a submission of the case to the court, regardless of the fact that the defendant asked, if that motion was denied, for the privilege of submitting other instructions, and did request further instructions. If that was the effect of the motions, we are limited, in reviewing the action of the court, to a consideration of the correctness of his finding on the law, and must affirm it if there is any substantial evidence to support it. On the other hand, if the defendant had not waived, in view of the reservation in its motion and subsequent request for further instructions, its right to go to the jury, we can inquire whether the instructions asked were rightly refused, whether the evidence was such as would have required the court to submit the case to the jury, or whether it was of such a conclusive character as to justify the court in instructing a verdict for the plaintiff.

In the United States courts, the rule is that, where each party to an action requests the court for a directed verdict in his favor at the close of the testimony, and does nothing more, the parties will be held to have waived the right to a trial by jury, and to have constituted the court a trier of questions both of law and fact. In stating the rule, the Supreme Court, in Williams v. Vreeland, 250 U. S. 295, 298, 39 S. Ct. 438, 439 (63 L. Ed. 989, 3 A. L. R. 1038), said: "`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 therefrom.' And upon review, a finding of fact by the trial court under such circumstances must stand if the record discloses substantial evidence to support it. Anderson v. Messenger C. C. A. 158 F. 250, 253; Beuttell v. Magone, 157 U. S. 154, 157 15 S. Ct. 566, 39 L. Ed. 654; Empire State Cattle Co. v. Atchison, Topeka & Santa Fé Ry. Co., 210 U. S. 1, 8 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Sena v. American Turquoise Co., 220 U. S. 497, 501 31 S. Ct. 488, 55 L. Ed. 559; American National Bank v. Miller, 229 U. S. 517, 520 33 S. Ct. 883, 57 L. Ed. 1310; Mead v. Chesbrough Bldg. Co. C. C. A. 151 F. 998, 1002; American National Bank v. Miller C. C. A. 185 F. 338, 341." See also note to Manska v. San Benito Land Co., 18 A. L. R. 1430, 1433.

No waiver of the right to have a case submitted to a jury is presumed from a request for a directed verdict on the part of both parties, where there is coupled therewith a request for other instructions, or for the submission of disputed questions of fact to the jury. Minahan v. Grand Trunk Western Railway Co. (C. C. A.) 138 F. 37; Sigua Iron Co. v. Greene (C. C. A.) 88 F. 207; Empire State Cattle Co. v. Atchison Ry. Co., 210 U. S. 1, 9, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70, which approved the concurring opinion of Judge Walter H. Sanborn in Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co. (C. C. A.) 147 F. 457, and the concurring opinion of Judge Shelby in McCormick v. National City Bank of Waco (C. C. A.) 142 F. 132, 6 Ann. Cas. 544; Minahan v. Grand Trunk Western Railway Co., supra; Manska v. San Benito Land Co., supra, page 1444.

It is apparent, therefore, that the defendant did not waive its right to have the disputed questions of fact, if any, submitted to the jury, and that the court was in error in directing a verdict in favor of the plaintiff, unless "the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding." C., M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041.

There was no evidence which would support the conclusion that the plaintiff took this shipment by reason of any deception practiced upon it by the defendant. The theory up on which the case was tried and decided was that the failure of the shipper to comply with the regulation of the Interstate Commerce Commission relative to the use of 28-gauge metal containers, was negligence per se, that the fire and the resulting loss was the direct result of that negligence, and that therefore the defendant was liable.

There are many assignments of error, but there are only three main questions involved: (1) Was the defendant negligent as a matter of law? (2) Was the failure to use 28-gauge metal containers the proximate cause of the damage? (3) Did the plaintiff prove its damages?

Where a statute imposes a duty upon a person for the protection or benefit of others, and he neglects to perform that duty, he is guilty of negligence, and is liable to those for whose protection or benefit it was imposed, for any injuries of the character which the statute is designed to prevent and which were proximately caused by such negligence. 20 R. C. L. pp. 38, 39; Cincinnati H. & D. R. Co. v. Van Horne (C. C. A.) 69 F. 139...