American Window Glass Co. v. Noe

• Decision Date: 07 January 1908
• Docket Number: 1,322.
• Citation: 158 F. 777
• Parties: AMERICAN WINDOW GLASS CO. v. NOE.
• Court: U.S. Court of Appeals — Seventh Circuit

158 F. 777

AMERICAN WINDOW GLASS CO. v. NOE.

No. 1,322.

United States Court of Appeals, Seventh Circuit.

January 7, 1908

John W Kern and L. B. Simmons, for plaintiff in error.

Pierre Gray and William J. Houck, for defendant in error.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

BAKER Circuit Judge, : The action of the court in refusing to grant a new trial is not reviewable.

No exception was taken to any of the instructions to the jury. As there was no substantial difference between the case as pleaded and as proven, the only questions are whether the court erred in compelling the trial of this case with another, and whether the evidence affords a legal basis for the verdict.

Section 921, Rev. St. (U.S. Comp. St. 1901, p. 685) authorizes the consolidation of cases for the purpose of trial 'when it appears reasonable to do so. ' The ground of plaintiff's motion was that he and the other plaintiff were injured in the same accident, and that the same evidence, except as to the extent of the injuries, was determinative of both cases. The only stated reason of defendant's opposition was the disparity between the injuries, the other plaintiff being comparatively unhurt, while this plaintiff was rendered utterly and forever helpless. Undoubtedly the condition of this plaintiff made a very strong appeal to the sympathies of the jury; but the record contains nothing that affords a basis for concluding that the verdict was other than it would have been if this case had been tried alone. The possibility, or our conjecture, that a separate trial might have resulted differently is no warrant for holding that the trial judge in sustaining the motion abused the discretion that is lodged in him by the statute. If ever this discretion may fitly be exercised in sustaining a contested motion of this character it would seem to be when the parties agree that all questions except as to the amounts of the claims are covered by the same evidence. Denver Tramway Co. v. Norton, 141 F 599, 73 C.C.A. 1; Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 Sup.Ct. 909, 36 L.Ed. 706.

Defendant was engaged in taking down one of its factory buildings, a frame structure 200 feet long, 80 feet wide, 50 feet high. The skeleton was made up of bents or trusses about 20 feet apart, supported on posts about 20 feet high, and knit together by a system of rafters, braces, and rods. There was evidence tending to prove that prior to the accident all of the siding and roofing and sheeting had been removed, and that four or five bents had been taken down one at a time by cutting them loose and pulling them away from the remaining standing portion; that the next bent was pulled down, in obedience to the express command of defendant's superintendent, towards and against the standing portion that at this time a large proportion of the rafters, braces, and rods in the remainder of the building had already been loosened or detached; that while plaintiff and some others, in obedience to the express command of defendant's superintendent, were taking apart and removing the materials of the bent last pulled down, other laborers were going on with the work of loosening the rafters, braces, and rods of the standing portion, and thereupon the collapse occurred in which plaintiff was injured; that while plaintiff was so at work defendant's superintendent was notified that the standing portion was somewhat out of plumb; that the aforesaid conditions of the standing portion were in fact unknown to plaintiff, and were not obvious because rafters were loosened at one end and allowed to remain in position, braces were sawn in two and retained the appearance of solidity, and nuts were removed from rods that were left in...