Amato v. Northern Pac. Ry. Co.

• Decision Date: 24 June 1891
• Citation: 46 F. 561
• Parties: AMATO v. NORTHERN PAC. R. CO.
• Court: U.S. District Court — Southern District of New York

46 F. 561

AMATO v. NORTHERN PAC. R. CO.

United States Circuit Court, S.D. New York.

June 24, 1891

The plaintiff, an Italian, 24 years of age, was, in 1888, in the employ of the defendant as a common laborer. On the evening of November 6th, of that year, he was run over by a locomotive of the defendant, receiving injuries which resulted in the amputation of his right foot. He sues to recover damages for this injury which, he alleges, was caused by the defendant's negligence. The action was tried at the April circuit, and resulted in a verdict of $4,000 for the plaintiff. The defendant thereupon moved to set aside the verdict as contrary to law, against the weight of evidence and for excessive damages. The plaintiff testified that on the day in question he was engaged with 56 other laborers in working on the west side of the Missouri river, near Bismarck, N.D. The lodging place of these workmen was on the east side of the river, and it was the custom of the defendant at about half past 5 in the afternoon to carry them on cars across the bridge to their homes. On the day in question the foreman who had charge of this party of laborers informed them that they could not be carried home in the usual manner, but would have to walk across the bridge; and that it would be safe to do so as no engine would cross until half past 7. The entire party started to cross the bridge on foot. The plaintiff had received an injury to his side a short time previous, and was unable to keep up with the others. When near the center he saw an engine coming towards him. He tried to step aside, but caught his foot under the wheels and received the injury described. The Bismarck bridge is straight, it has a single track, and is 1,450 feet in length. On the day in question the track was slightly frozen. The plaintiff could have stepped off the track out of the way of the engine if he had seen it coming, but there was not room at the side of the track to walk. He could have crossed at the side only by crawling from one trestle to another. The foregoing is, in substance, the account of the accident given by the plaintiff. On the part of the defendant several witnesses testified that the plaintiff was injured at a point several hundred feet from the east end of the bridge while attempting to jump on the front board of a moving engine. It is unnecessary to consider this testimony further than to say that it entirely exculpated the defendant; if true, the defendant was proved to be free from negligence, and the plaintiff was shown to be guilty of gross contributory negligence. The jury, however, believed the statement of the plaintiff and rejected that of the defendant. At the close of the plaintiff's case and again after the evidence was all in the defendant moved to direct a verdict on the ground of the contributory negligence of the plaintiff. Upon this question the court charged the jury, after calling their attention to the evidence which tended to show that the plaintiff should have seen and avoided the engine, as follows:

'Of course, on the other hand, you have the right to take into consideration the statement which the plaintiff says was made to him by the defendant's boss, that it was safe for him to cross at that time, and that no engine would cross the bridge until about 7:30 o'clock.'

The defendant excepted to that portion of the charge just quoted. This exception and the exception to the refusal of the court to direct a verdict on the ground of contributory negligence were the only ones taken by the defendant. The point that the defendant was free from fault, and that the negligence which caused the accident was that of the engineer, who was a fellow-servant with the plaintiff, and the point that this court has no jurisdiction of the action were not raised at the trial.

Roger Foster, for plaintiff.

Henry Stanton, for defendant.

COXE J.

The verdict was not against the weight of evidence. It is true that the plaintiff testified to one version of the accident and several witnesses called for the defendant testified to a different, and wholly irreconcilable, version; but this did not authorize the court to take the question from the jury. Such disputes are peculiarly within their province. A verdict, so rendered, should not be disturbed if there is any evidence to sustain it. Davey v. Insurance Co., 20 F. 494; Bust v. Steam-Boat Co., 24 F. 188; Greany v. Railroad Co., 101 N.Y. 419, 423, 5 N.E 425; Sherry v. Railroad Co., 104 N.Y. 652, 10 N.E 128. It was not error to submit the question of the plaintiff's negligence to the jury. ...