Cahill v. Mayflower Bus Lines

• Decision Date: 10 June 1935
• Docket Number: No. 446.,446.
• Citation: 77 F.2d 838
• Parties: CAHILL v. MAYFLOWER BUS LINES, Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

77 F.2d 838 (1935)

CAHILL v. MAYFLOWER BUS LINES, Inc., et al.

No. 446.

Circuit Court of Appeals, Second Circuit.

June 10, 1935.

Lynch, Cahn & Weed, of White Plains, N. Y. (Humphrey J. Lynch, Monroe J. Cahn, and George B. Francis, all of White Plains, N. Y., of counsel), for appellant.

John M. Gibbons, of New York City, for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

While appellant was a passenger in a bus operated by the defendant Mayflower Bus Lines, Inc., and while crossing a bridge over the appellee New York, New Haven & Hartford Railroad Company's tracks, in the village of Rye, Westchester county, N. Y., the bus collided with a truck and appellant was severely injured. Alleging the collision was due to negligent defects in and lack of proper maintenance of a roadway over the bridge, appellant sued appellee Railroad Company, and sued the defendant Mayflower Bus Lines, Inc., for alleged negligence of its chauffeur. The trial resulted in a jury's verdict for the appellant against the New York, New Haven & Hartford Railroad Company and for the defendant Mayflower Bus Lines, Inc. The trial judge reserved decision on a motion for a directed verdict at the end of the submission of the evidence, and later reserved the decision on the motion to set aside the verdict after its rendition. While these motions were still undecided, a motion was made by appellant for an order continuing the trial for the purpose of enabling appellant to sever the action, and to have a new trial as against the appellee the New York, New Haven & Hartford Railroad Company, with leave to serve an amended complaint. The proposed amendment of the complaint amplified structural defects in the bridge said to have come to appellee's notice for the first time during the trial.

The issue submitted to the jury as to appellee's negligence was the failure to maintain the railroad bridge and roadway as required by section 93 of the Railroad Law of New York State (Consol. Laws N. Y. c. 49, amended by Laws 1928, c. 546, § 21), after notice of defects by the village of Rye. The motion to continue the trial was made returnable March 16, 1934, and the trial judge died March 14, 1934. Another district judge was assigned to hear and pass upon the motions for a directed verdict and for the leave requested to serve an amended complaint.

The successor judge directed a verdict for appellee Railroad Company and denied the motion for leave to amend the complaint. Appellant argues that the death of the trial judge caused a mistrial and that a new trial should be ordered.

The question is therefore presented whether the successor judge had the power to pass upon the reserved motion, pending before the trial judge, for a directed verdict. In Life & Fire Ins. Co. v. Wilson, 8 Pet. 291, 303, 8 L. Ed. 949, an action on a mortgage, the trial judge rendered a decision and died before signing it. Passing upon the power of a successor judge to do so, the court said that: "He, as the successor of his predecessor, can exercise the same powers, and has a right to act on every case that remains undecided upon the docket, as fully as his predecessor could have done. The court remains the same, and the charge of the incumbents cannot and ought not, in any respect, to injure the rights of litigant parties."

Malony v. Adsit, 175 U. S. 281, 20 S. Ct. 115, 44 L. Ed. 163, held that no bill of exceptions could be lawfully authenticated unless signed by the trial judge, but this result has been changed by statute (Act of June 5, 1900, c. 717, § 1, 28 USCA § 776). United States v. Meldrum, 151 F. 177, 10 Ann. Cas. 324 (C. C. A. 9).

In Chin Wah v. United States, 13 F.(2d) 530 (C. C. A. 2), the trial judge resigned before sentence, and the sentence imposed by another judge was held lawful. After death of the trial judge, a successor judge may pass upon a motion for a new trial. In King v. United States, 25 F.(2d) 242 (C. C. A. 6), where the stenographic minutes of the proceedings were available to a successor judge, after the death of the trial judge, it was held he might pass upon the motion for a new trial. In Thomas-Bonner Co. v. Hooven, Owens & Rentschler Co., 284 F. 386 (C. C. A. 6), the court held the parties could agree that a successor judge should hear and dispose of the case on the testimony and exhibits already introduced and upon argument of counsel, but consent alone would not confer the power upon the successor judge. Such powers in a successor judge are found in the state court decisions. See Benson v. Hall, 197 Mass. 517, 83 N. E. 1036; People v. McConnell, 155 Ill. 192, 40 N. E. 608; Commonwealth v. Gedzium, 261 Mass. 299, 159 N. E. 51; In re Martin Nolan's Will, 71 N. J. Eq. 207, 63 A. 618; Duplantis v. Barrow, 165 La. 1091, 116 So. 568.

In Freeman v. United States, 227 F. 732, this court held a judge could not be substituted for another during the taking of testimony because a substituted judge would be unable to advise the jury about the value of the testimony and that a defendant was not free to waive a jury trial. It is now authoritatively decided a defendant may waive a jury. Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854, 70 A. L. R. 263.

The question which the successor judge had to decide in the instant case was whether the written notice of defects in the roadway, served by the village of Rye, sufficiently apprised the appellee Railroad Company of the defects in the roadway so as to comply with section 93 of the Railroad Law (amended by Laws 1928, c. 546, § 21). It was not essential to have heard or seen the witnesses to pass on this question. The successor judge, in his opinion, tells us he studied the full record. Such examination of the record and the documents fully...