Burch v. Southern Pac. Co.

• Decision Date: 07 May 1906
• Docket Number: 813.
• Citation: 145 F. 443
• Parties: BURCH v. SOUTHERN PAC. CO.
• Court: U.S. District Court — District of Nevada

145 F. 443

BURCH v. SOUTHERN PAC. CO.

No. 813.

United States Circuit Court, D. Nevada.

May 7, 1906

H. R MacMillan and H. H. Henderson, for plaintiff.

S Summerfield and E. E. Roberts, for defendant.

HAWLEY District Judge (orally).

A new trial is asked for upon three grounds: (1) Excessive damages appearing to have been given under the influence of passion or prejudice; (2) insufficiency of the evidence to justify the verdict; (3) 'errors in law occurring at the trial and during the instruction of the jury by the court and excepted to by the defendant.'

1. It must be admitted that the jury were exceeding liberal in the amount of damages allowed, and marched up near the border line but I do not feel authorized to say that the amount is so excessive as to indicate passion or prejudice upon the part of the jury, which seems to be the only ground that gives authority for the court to interfere with the amount of the verdict.

2. Can it judicially be said that there was 'a clear preponderance of evidence' against the verdict? The court instructed the jury 'that it devolves upon the plaintiff in making out his case to establish by a preponderance of evidence all of the essential affirmative allegations in his complaint which are denied in the answer. ' Again 'you are the sole judges of the credibility and weight that is to be given to the different witnesses who have testified upon this trial,' and further instructed the jury as to the methods they should use 'in judging of the credibility of the respective witnesses in this case, there being a conflict upon some points. ' The testimony of the plaintiff was clear, direct, and positive upon all the material points in the case. There was nothing in his manner, conduct, or appearance to reflect upon his credit. It may be admitted, as is claimed, that this could not be said of all the witnesses who testified in his favor. The jury might, under the instructions, have disbelieved, and for that reason have discarded, some of their statements, but this is a matter solely within the province of the jury. The preponderance of evidence does not depend upon the number of witnesses. This is not the governing question. The truth is, there was a direct conflict upon the controlling point as to whether the plaintiff gave notice to an agent of the defendant of the defective switch stand, who was authorized, or whose duty it was, to see that the repairs were made. There was ample evidence to sustain the verdict. In such cases courts would not, in my opinion, be justified in granting a new trial upon the ground stated.

3. At the trial I was impressed by the testimony of the witnesses that there was some conflict as to whether or not the yardmaster was given authority to make repairs when notified that anything in his department was in a defective and dangerous condition, and hence left it to the jury 'as a question of fact to be decided by you, to be determined from the evidence, as to whether or not the yardmaster had the power or authority, by virtue of his position, or by express authority from his master, to make repairs, and gave a promise that he would do so. This question is to be determined by you from all the facts whether he had authority from the corporation-- whether he had authority from one possessing the power to give him authority-- or whether it was the custom or duty of such an officer to perform such duty.'

Mr. Burch, the plaintiff, testified:

'Q. To whom had you made that report (defect of the switch stand)? A. To the yardmaster on one occasion when working by the switch. * * * Q. Who was the yardmaster you made the report to? A. Mr. Fridley, William Fridley, I believe. Q. Do you know what the duties of the yardmaster were? A. Well, he has to exercise a general jurisdiction over the yard work. Q. Does he hire and discharge men? A. Yes, sir. Q. Does he have the authority to order repairs? A. Yes, sir. * * * Q. * * * I will ask you, do you know, of your own knowledge, whether the yardmaster ever ordered repairs? A. Yes, sir. * * * Q. You say you know of your own knowledge of the yardmaster giving orders for repairs? A. Yes, sir. Q. Do you know whether afterwards the repairs were made? Yes, sir; they were afterwards made.'

Mr. Fridley, the yardmaster, testified as follows:

'Q. As yardmaster there will you explain to the jury what your duties were? * * * A. I was supposed to look after the business that was carried on in the yard there during these particular hours that I was on duty, and to hire and discharge the men. A. Was one of your duties to order repairs made? A. Yes, sir. * * * Q. You never had any specific instructions as to what your duties were out

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