Chicago Great Western Railway Company v. Scovel

• Decision Date: 10 May 1956
• Docket Number: No. 15485.,15485.
• Citation: 232 F.2d 952
• Parties: CHICAGO GREAT WESTERN RAILWAY COMPANY, a Corporation, Appellant, v. Leon SCOVEL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F.2d 952 (1956)

CHICAGO GREAT WESTERN RAILWAY COMPANY, a Corporation, Appellant, v. Leon SCOVEL, Appellee.

No. 15485.

United States Court of Appeals Eighth Circuit.

May 10, 1956.

COPYRIGHT MATERIAL OMITTED

David L. Grannis, Jr., So. St. Paul, Minn. (Grannis & Grannis and Luther M. Stalland, So. St. Paul, Minn., on the brief), for appellant.

Charles T. Hvass, Minneapolis, Minn. (Hvass, Weisman, Peterson, King & Schwappach, Minneapolis, Minn., on the brief), for appellee.

Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

Appellee Leon Scovel brought this action against the Chicago Great Western Railway Company to recover damages for personal injuries suffered by him while he was in the employ of appellant. The parties will be referred to as they were designated in the trial court. At the time of receiving his injuries plaintiff was employed by defendant on its railroad, a common carrier engaged in interstate commerce, as a section foreman. In his complaint he charged defendant with negligence in the following particulars: (1) That it failed to furnish him with a reasonably safe place in which to work; (2) That it failed to furnish him with equipment that was in reasonably safe condition for the purpose for which it was to be used; (3) That it furnished him with equipment that was defective and in a state of disrepair; and (4) That it failed to exercise ordinary and reasonable care under the circumstances then existing.

Defendant by its answer denied all of the allegations of negligence contained in the complaint and alleged affirmatively that plaintiff's injuries were caused solely by his own negligence. The action was tried to the court and a jury. At the close of all the evidence defendant interposed a motion for a directed verdict on the grounds that "* * * no actionable negligence against it or any of its employees has been proved and as a matter of law appears that any injuries plaintiff received were a result of or caused proximately by his own contributory negligence." The court announced that it would reserve ruling on the motion until after verdict. The jury returned a verdict against defendant and in favor of plaintiff on all the issues. In due course the defendant moved for judgment notwithstanding the verdict, which motion the court overruled and entered judgment in favor of plaintiff and against defendant pursuant to the verdict. Defendant has appealed from the judgment so entered and seeks reversal on substantially the following grounds: (1) There was insufficient evidence for submitting to the jury the issue of defendant's negligence and that such negligence, if any, was the proximate cause of plaintiff's injuries; (2) The trial court erred in its instructions to the jury; (3) The trial court erred in admitting over defendant's objections the testimony of Orville J. Smith and all evidence relating to trailer cars; and (4) Plaintiff's counsel was guilty of misconduct in his final argument to the jury.

Before considering the merits of defendant's contentions we shall refer to the condition of appellant's brief. Rule 11(b) of this court provides that the brief shall contain, inter alia:

"A concise statement of the case in so far as is necessary for the court to understand and decide the points to be argued in the brief, giving the pages of the printed record where each fact stated can be found and verified. If a point relates to the admission or exclusion of evidence, the statement shall quote the evidence referred to, and any objections or other equivalent action taken relative thereto, together with the rulings of the court thereon, giving the pages of the printed record on which the quotations appear. * * * If a point relied upon relates to the giving of instructions or the refusal to give instructions requested, the statement shall quote the portions of the instructions or of the requested instructions which are referred to, the objections or exceptions taken to the giving of the instructions or to the refusal to give requested instructions and the rulings of the court thereon, and shall give the pages of the printed record on which the quotations appear."

By inadvertence or otherwise, this rule has not been complied with. So far as any attempt is made to present rulings of the court on the admissibility of evidence, neither in the statement of the case nor in the points to be argued is to be found the evidence referred to, nor any objections or other equivalent action taken relative thereto, nor any rulings of the court thereon.

The brief is equally lacking in the essential requisites to present for review the correctness of the court's instructions. In this regard the brief is absolutely silent in the statement of the case and the points to be argued as to any quotation from "* * * the portions of the instructions or of the requested instructions which are referred to, the objections or exceptions taken to the giving of the instructions or to the refusal to give requested instructions and the rulings of the court thereon * * *." We are, at most, invited to search the record for error in this regard. In this state of the record we are warranted in disregarding these allegations of error and we shall pass them without discussing in detail the rulings complained of. We have, however, satisfied ourselves that there has been no miscarriage of justice and that no prejudicial error was committed by the trial court regarding any of these rulings now complained of.

The substantial question presented on this appeal is whether or not the court erred in not granting defendant's motion for a directed verdict interposed at the close of all the evidence or in denying his motion for judgment notwithstanding the adverse verdict of the jury.

In considering this question we must view the evidence in a light most favorable to the prevailing party and we must assume that all conflicts in the evidence have been resolved by the jury in his favor and that the evidence proves all facts which it reasonably tends to prove. The prevailing party is also entitled to the benefit of all such favorable inferences as may reasonably be drawn from the evidence. If, when so considered, reasonable minds might reach different conclusions then the case presents issues of fact to be submitted to the jury and not issues of law to be determined by the court. Lowden v. Hanson, 8 Cir., 134 F.2d 348; Carter Carburetor Corp. v. Riley, 8 Cir., 186 F. 2d 148; Chicago, Rock Island & Pacific Railroad Co. v. Lint, 8 Cir., 217 F.2d 279; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720.

With this rule in mind we turn to a consideration of the evidence. At the time of the accident plaintiff was employed by the defendant as a section foreman. He was a man of wide experience in the work of maintaining railway physical structures, including the roadbed, ballast, ties and rails. As section foreman he was in charge of a crew of thirteen workmen. They were furnished for use in transporting themselves, their necessary tools, and at times material, two cars, one designated as a motor car and the other as a push car. The push car was attached to the rear end of the motor car by means of a metal coupler with a flange at each end, one end of which fitted onto a protruding member at the back end of the motor car and the other end of which fitted onto a protruding member on the front end of the push car. There was a hole through the flanges and through the protruding members, and through this hole was fitted a pin or bolt about eight or ten inches in length so that there were two bolts in this completed coupling. The bolts had no nut nor other means of holding them in place but they had a head at the top and could not slip through the hole provided. The motor car was propelled by a gasoline engine and was equipped with...