Atlantic Ice & Coal Corp. v. Van

• Decision Date: 08 November 1921
• Docket Number: 3561.
• Citation: 276 F. 646
• Parties: ATLANTIC ICE & COAL CORPORATION v. VAN.
• Court: U.S. Court of Appeals — Sixth Circuit

276 F. 646

ATLANTIC ICE & COAL CORPORATION v. VAN.

No. 3561.

United States Court of Appeals, Sixth Circuit.

November 8, 1921

The plaintiff in error seeks the reversal of a judgment rendered against it in the District Court of the United States for the Eastern District of Tennessee in favor of the defendant in error, Sam Van, for damages for personal injuries sustained by him while in its employ.

The plaintiff in the District Court averred in his declaration that on the 30th day of May, 1917, the defendant was operating an ice factory in the city of Knoxville, Tenn that plaintiff at that time and for five or six days prior thereto had been employed by the defendant in loading ice upon its wagons and trucks and assisting in the distribution of the same to defendant's customers; that defendant's office was located near the east corner of its premises, and near and in front of the building in which its ice was stored; that a porch was in front of this office and between it and Cumberland avenue, and that its factory buildings extended a few feet beyond this porch toward Cumberland avenue; that a short flight of steps led from this porch to the ground; that the usual way of going into and from this office was through a door between the office and porch and over the porch and flight of steps, and that such way was continually used by defendant's employes and those going to its office on business; that defendant had fastened a rod to the corner of its factory building and had extended the same in front of and to a point about midway of the steps, the end thereof being fastened in the ground within from one to two feet of the bottom step.

The plaintiff further averred that the defendant was guilty of gross negligence and carelessness in maintaining this rod so situated at a place that was being continually used by employes of defendant and those entering its office and departing therefrom on business, and that the plaintiff was not aware of the presence of this rod; that on the 30 the day of May about half past 3 o'clock in the afternoon, and after plaintiff had completed his work for that day, he was ordered and directed by a superior servant to accompany another truck loaded with ice and assist in delivering the same to customers; that this was pay day, and before leaving the defendant's factory to comply with the orders of his superior he went into defendant's office to receive his pay; that after having obtained his pay he passed out of the door of the office across the porch and descended the flight of steps; that another employe had been directed to accompany plaintiff on this extra trip, and, for the reason that this coemploye was waiting to receive his wages, it was plaintiff's intention when he left the office to notify the driver of the truck, as it passed in front of the steps that he and his coemploye would pass across a bridge and meet him on Cumberland avenue; that about the time plaintiff reached the bottom of the steps the truck was driven by the employe in charge of the same, rapidly around the end of the building, and, his attention being thus attracted, in making a step he caught his foot beneath the rod located near the bottom of the steps and was thrown upon the ground in front of the truck, which was then so near to him that the driver was unable to stop, and the truck was driven upon the plaintiff causing the injuries complained of. To this declaration the defendant for plea thereto averred that it was not guilty of the matters and things and wrongs and injuries complained of.

Upon the issues so joined the case was tried four times in the District Court. The first trial resulted in a verdict in favor of the plaintiff for $2,095.25. This verdict was set aside by the trial court. The second trial resulted in a disagreement of the jury. The third trial resulted in a verdict for the defendant, which was set aside by the trial court. The fourth and last trial resulted in a verdict in favor of the plaintiff for $1,000. The defendant's motion for a new trial was overruled, and the District Court entered a judgment upon this verdict in favor of the plaintiff and against the defendant.

John W Green, of Knoxville, Tenn. (Green, Webb & Tate, of Knoxville, Tenn., on the brief), for plaintiff in error.

Harley G. Fowler, of Knoxville, Tenn. (Fowler & Fowler, of Knoxville, Tenn., on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge (after stating the facts as above).

This court has no authority to reverse this judgment upon the weight of the evidence. R.S. Sec. 1011 (Comp. St. Sec. 1672). Penna. Casualty Co. v. Whiteway et al., 210 F. 782, 127 C.C.A. 332; Brazil Block Coal Co. v. Hotel, 192 F. 108, 112 C.C.A. 448; Railway Co. v. Akre, 200 F. 955, 119 C.C.A. 250; Mfg. Co. v. Maslanka, 203 F. 465, 121 C.C.A. 589.

No exceptions were taken to the charge of the court or to its ruling upon the admission or rejection of evidence; therefore the only question presented by this record is whether or not the court erred in overruling the motion of the defendant, at the close of all the evidence, for a directed verdict.

A court has no authority to direct a verdict, where a consideration of all the evidence, and the inferences reasonably and justifiably to be drawn therefrom would sustain a verdict for the opposing party. Bramley v. Dilworth (C.C.A.) 274 F. 267; Railway Co. v. Lacey, 185 F. 225, 107 C.C.A 331; Railway Co. v. Anderson, 168 F. 901, 94...