Texas & Pacific Railway Company v. Laborde

• Citation: 257 F.2d 587
• Decision Date: 11 August 1958
• Docket Number: No. 17174.,17174.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Mrs. Gladys Mayeaux LABORDE et al., Appellees.

257 F.2d 587 (1958)

TEXAS & PACIFIC RAILWAY COMPANY, Appellant, v. Mrs. Gladys Mayeaux LABORDE et al., Appellees.

No. 17174.

United States Court of Appeals Fifth Circuit.

June 30, 1958.

Rehearing Denied August 11, 1958.

Frank H. Peterman, Alexandria, La., for appellant.

C. F. Gravel, Jr., Alexandria, La., John A. Boatner, Bunkie, La., Gravel, Humphries, Sheffield & Mansour, Alexandria, La., for Gladys Mayeaux Laborde and others, plaintiffs-appellees.

Before HUTCHESON, Chief Judge, and JONES and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

The suit was for damages resulting from a collision occurring at a railroad crossing of a dirt and gravel road, known as the O'Neal crossing, between plaintiff's automobile and a freight train belonging to, and under the control of, defendant.

The claims of negligence were: maintaining the right-of-way at and around the crossing in such manner that the view of the track was obstructed and persons using the gravel road could not see up and down the tracks;¹ the failure to operate the train at a reasonable speed; the failure to sound timely warning signals; and the failure to slow the train when the danger of a collision appeared.

The defenses were: a denial of the claims of negligence; and allegations, that the collision was not proximately caused by any fault on its part but by the negligence of plaintiff, and that if defendant was negligent in any particular, plaintiff was guilty of contributory negligence barring her recovery.

At the conclusion of the evidence,² which was not substantially in dispute, defendant moved for an instructed verdict on the grounds set out below,³ and the court, denying the motion but without prejudice to its reconsideration after the verdict, submitted the case to the jury on a charge, to which no objection was made. There was a verdict for plaintiff and a motion to set aside the verdict of the jury and enter judgment for defendant, and, in the alternative, for a new trial, and the court, giving his reasons for so doing in an opinion filed by him, denied both motions, and entered judgment on the verdict for the plaintiff.

Appealing from the judgment, defendant is here assigning, as its chief grounds, that (1) no actionable negligence on the part of the defendant was shown, and (2) if there was, plaintiff was contributorily negligent. A subordinate ground assigned is that the court made various rulings which were erroneous and prejudicial to defendant.

Pointing out that the only ground of negligence adverted to by the trial court in his opinion was the failure of the defendant "to maintain its right-of-way adjacent to the crossing so as to allow a motorist to see up and down the track", and arguing that, under the undisputed evidence, including that of the plaintiff herself, the fact that weeds and grass obstructed the view was not a proximate cause of plaintiff's injuries, appellant insists that the judgment must be reversed and here rendered, both for that reason and because of the contributory negligence of the plaintiff.

In demonstration of the truth of these contentions, appellant then puts forward in a brief, distinguished as well by its range as by its specificity, a series of propositions with in each instance a reference to, and in most a quotation from, a decision or decisions of the Louisiana Courts, with now and then a decision of a federal court, deemed precisely in point and authoritative or closely in point and persuasive. In doing this, however, it recognizes that almost no case is in its facts a precise replica of another and that each court in each case must, under the rules of right reason which govern the determination, determine and decide whether under the particular facts of that case the issue of negligence or contributory negligence in that case presents a question of law for the court or of fact for the jury.

Appellees concede, as they must, that, as decided by this court in Brinson v. Illinois C. Ry. Co., 5 Cir., 241 F.2d 494, while negligence and contributory negligence are ordinarily issues for the jury, where there is no substantial conflict in the evidence and when, from undisputed and indisputable facts, reasonable men in the exercise of right reason and fair judgment could draw only one conclusion, the court may properly withdraw them from the jury. Standing firmly, however, on the opinion and decision of the district judge and on the cases cited and relied on by them, including particularly Henwood v. Wallace, 5 Cir., 159 F.2d 263, Judge Sibley dissenting, and Texas & Pac. Ry. Co. v. Watkins, 5 Cir., 243 F.2d 171, Judge Tuttle dissenting, appellees insist that under the facts of this case the issues were not for the court but for the jury.

For the reasons and upon the authorities hereafter set down, we agree with appellant, we disagree with appellees and the district judge. Because, however, of the very profusion and, we must add, confusion in the decisions dealing with this troublesome matter, fact or law, before proceeding to the precise demonstration of our view, that in this case the questions presented are of law and not of fact, we think some preliminary generalizing will not be amiss.

The civilian, with his code and his trial by judge, looks on the terms matter of fact and matter of law as little better than senseless jargon. We, brought up in its spirit and nurture, know that matter of fact and matter of law are the very stuff of which the common law is made, and that negligence suits have furnished natural battle grounds for knock down and drag out fights over fact and law.

Whether the maxim, "ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores", a favorite with Coke, was borrowed by him from Bracton, or was his own confection, is not material for our purpose. It is sufficient to say of it that, never true if taken absolutely, it was never intended to be, it was never so taken, and that in outline and in effect it states the great general rule that the regular common law mode of trying questions of fact is by jury. Said Coke:

"The most usual trial of matters of fact is by twelve such men; for ad quaestionem facti non respondent judices; and matters in law the judges ought to decide and discuss; for ad quaestionem juris non respondent juratores."

In saying this, he made it plain that definition must go out of the window and that in determining what is matter of fact and what is matter of law, we must look alone to what judges have done, are doing, probably will do. In short, matters which the judges are supposed to settle and determine are matters of law, all others are matters of fact for the jury.

This discrimination between matter of fact and law is not a mere product, it is of the essence, of the jury system. Its progress and development are the result of efforts on the one hand to bring certainty into the law by declaring and giving effects to standards rather than leaving every case to be variantly decided by varying juries, and, on the other, to decry these efforts and bring them to naught, as making for a "delusive exactness".⁴ Our wisest, indeed our only satisfactory course, therefore, is to take matter of law and matter of fact as the decisions have worked, and are working, them out, troubling ourselves not at all with the baffling attempt to determine and define their philosophical content and meaning, viewed abstractly and as disassociated from the decisions.

Chamberlayne, in his Modern Law of Evidence, Vol. 1, cc. 2 and 3, agreeing with the view here taken, that it is sufficient to say that, as used in the trial of cases, law is the standard or rule which the court must apply to the facts, and fact is every other matter which the judge must not, and the jury therefore must, determine, makes a valuable contribution. He points out that the separation of the judicial tribunal for the trial of cases into its two component parts of judge and jury is the most salient and fundamental feature of English jurisprudence, and that it is this division of function which has made it necessary to segregate matter of law from matter of fact. He makes it clear, as others do, that what is law and what is fact have been, and will continue to be, a matter of growth and change as the prevailing climate of opinion narrows or broadens the field of certainty. Completely rejecting the idea that a jury authorized to return a general verdict may be said to have a right to judge of both law and fact, he points out that it has the power to disregard the law as given in the instructions of the court; it does not have the right to do so and then itself adjudge the law. "This power instead of being called a power to judge of the law should rather be regarded as a power to set aside the law in a given instance, and it is believed that the popular affection for the system of trial by jury lies largely in the fact that this system involves a popular prohibition upon the execution of the law in hard cases." Thompson, Trials (1889) 2133.

This struggle between those who wish the law to be certain and fixed and each case to be decided as matter of law by the judge, and those who wish it human and flexible and each case to be decided as matter of fact by the jury, between the certainers and the uncertainers, between precedent and free decision, between law and fact, has put society and the Judge as Administrator⁵ hard to it to develop fair and workable trial rules which, while giving effect to controlling law, leave fact questions to the jury. The chief of these rules are (1) rules of evidence; (2) rules for the construction of documents, statutes and other writings; (3) rules for the instruction and the guidance of the jury on the law of the case; and (4) the direction of a verdict under the rule of right reason on an issue or on the whole case where the evidence is without probative force.⁶

Proceeding now to the demonstration that, as matter of law, no case of actionable...