Denver City Tramway Co. v. Norton

• Decision Date: 13 November 1905
• Docket Number: 2,140,2,141.
• Citation: 141 F. 599
• Parties: DENVER CITY TRAMWAY CO. v. NORTON et al. SAME v. FRENCH et al.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 599

DENVER CITY TRAMWAY CO. v. NORTON et al.

SAME v. FRENCH et al.

Nos. 2,140, 2,141.

United States Court of Appeals, Eighth Circuit.

November 13, 1905

(Syllabus by the Court.)

Where separate actions are brought by separate plaintiffs against the same defendants, pending in the same court, for personal injuries sustained in the same accident, depending upon the same evidence, with the only difference in the extent of the injuries to the respective plaintiffs, the causes, under section 921, Rev. St. U.S. (U.S. Comp. St. 1901, p. 685), are properly consolidated for trial.

Under the judiciary act the amount in dispute or matter in controversy, determining the jurisdiction of the court, is the amount demanded in the petition in good faith, and not the amount ultimately recovered.

In a joint action against a street car company and an omnibus company for personal injuries to a passenger, resulting from a collision at a street crossing, tried to a jury, with a verdict of not guilty as to the omnibus company and guilty as to the street car company, on writ of error sued out only by the street car company, no error committed by the trial court in favor of the omnibus company can avail the plaintiff in error, except in so far as it may have prejudiced the defense of the plaintiff in error in showing that the injury resulted from the negligence of the omnibus company without the concurring negligence of the plaintiff in error.

While street cars and drivers of vehicles, equestrians, and pedestrians, as a general rule, have concurrent rights to occupy the public street crossings in a city, the right of the railroad at such point is superior, in the sense that it is preferential, as to the right of way.

Facts reviewed as to whether or not the motorman was guilty of negligence in approaching a street crossing, and held to be a question for the jury.

Where a city ordinance requires the motorman of a street car on approaching a street crossing to sound a gong within 60 feet of the crossing, and the evidence tends to show that the gong was not so sounded, but that the driver of the coach approaching the crossing in fact saw the car more than 60 feet from the crossing, held, that the court erred in its charge in directing particular attention to the failure to give the signal as required by ordinance.

Where the plaintiff in an action for damages on account of personal injuries testified to material facts respecting the character and extent of such injuries, and especially in contradiction of other witnesses, held, that the defendant was entitled to an instruction to the effect that while under the statute the plaintiff is permitted to testify in her own behalf, yet in considering such evidence the jury may take into consideration the fact that she is directly interested in the result of the suit. Held, further, that the duty to so charge is not met by a general instruction to the effect that the jury are the judges of the credibility of the witnesses and the weight to be given to the testimony of each.

While the court does not assent to the proposition that in all given cases contributory negligence may not be attributed to a person riding in a vehicle with a driver, not the passenger's servant, yet, where the passenger is riding in a coach, the driver not being her servant or under her control, on a seat several feet from the driver and at an elevation of seven feet from the ground, held, that contributory negligence is not attributable to her for either failing to warn the driver of danger, or in not leaping from the coach under the circumstances.

In the federal jurisdiction, in an action for personal injuries, in the absence of some enabling statute of the state, the plaintiff cannot, by order of court, be required to submit to a personal examination by a surgeon. All the right the defendant in such instance has is to make request upon the plaintiff to consent to such examination, and in case of refusal the defendant should be permitted to disclose such refusal on the trial, and comment thereon to the jury, to the plaintiff's prejudice.

Albert Smith (Charles J. Hughes, Jr., and Gerald Hughes on the brief), for plaintiff in error.

Horace N. Hawkins (Baldrige & De Bord, and Edmund F. Richardson, on the brief), for defendants in error, Norton and French.

William P. Malburn (Charles S. Thomas and W. H. Bryant on the brief) for defendant in error, Denver Omnibus & Cab Company.

Before SANBORN, Circuit Judge, and PHILIPS and CARLAND, District judges.

PHILIPS District Judge.

On the 30th day of July, 1902, the defendant in error Anna C Norton, a citizen of the state of Nebraska, and the defendant in error Mary B. French, a citizen of the state of Texas, were visiting in the city of Denver, Colo. In connection with a number of other persons, they hired of the Denver Omnibus & Cab Company, a tallyho coach, and rode out in the nighttime to a suburban hotel or resort, where they attended an entertainment. On returning to the city about 11:30 p.m., the said coach approaching on Logan avenue, at its intersection with Alameda street, was struck by a street car of the Denver City Tramway Company running on said Alameda street, whereby the coach was overturned and the said defendants in error received personal injuries. They brought separate actions, jointly against the two said companies, for damages. Over the objection of the plaintiff in error the two causes of action were consolidated by order of court for the purposes of trial. On trial to a jury, the jury returned a verdict in favor of the defendant the Denver Omnibus & Cab Company, and separate verdicts against the Denver City Tramway Company, assessing the damages in favor of the defendant in error Anna C. Norton in the sum of $1,200, and in favor of the defendant in error Mary B. French in the sum of $2,500. To reverse these judgments the said tramway company prosecuted writs of error to this court, citing the defendants in error and said omnibus and cab company. There are a large number of assignments of error on this record, but we will discuss only such of them as we deem material.

Complaint is made of the cation of the court in directing a consolidation of the two cases for trial. The two actions grew out of the same accident, with the same defenses, and depended on the same evidence. The only difference being in the matter of damages dependent upon the extent of the injury sustained by the respective plaintiffs. Such a consolidation was clearly within the judicial discretion reposed in the court by section 921, Rev. St. U.S. (U.S. Comp. St. 1901, p. 685). The incidents of the trial disclose no foundation for the contention that the trial of the two cases to the same jury operated injuriously to either party.

Error is assigned to the alleged action of the court, in impaneling the jury, in not allowing the defendant tramway company more than three peremptory challenges. This assignment must fail, for the reason that the bill of exceptions does not show what in fact was the action of the court in this particular, or that any exception thereto was saved.

It is also assigned for error that the court did not dismiss the action in the case of the defendant in error Anna C. Norton, on the ground that the amount really in controversy did not exceed the sum of $2,000, exclusive of interest and costs. The amount of damages sued for was $10,000. Under the judiciary act the amount in dispute or matter in controversy which determines the jurisdiction of the circuit court in suits for the recovery of money is the amount demanded by the plaintiff in the petition in good faith, and not the amount ultimately recovered. Peeler v. Lathrop 48 F. 780, 1 C.C.A. 93; Ung Lung Chung et al. v. Holmes (C.C.) 98 F. 323. We cannot say, on this record, that the amount demanded by the plaintiff below was not in good faith. This must be so, where, had the jury rendered a verdict on the evidence for a sum exceeding $2,000, it could not be said there was not some evidence to support the verdict, although in the judgment of the court the sum found by the jury might be excessive.

As the verdict of the jury was in favor of the Denver Omnibus & Cab Company, and the defendants in error did not sue out any writ of error thereon, the judgment in its favor is not here for review. Only in so far as any misdirection of the court in respect of the liability of the omnibus company for the injury in question may relate to and affect the responsibility of the tramway company, is it important to consider the contribution of the driver of the coach to the accident. The two companies being sued as joint tort-feasors, if the negligence of each contributed thereto, they are jointly and severally liable for the damages. And as, in the absence of any statute changing the rule, there could be neither any apportionment nor contribution among the wrongdoers of the damages, the tramway company is not entitled to a reversal of the judgment on account of any error committed by the court in favor of the omnibus company, although it might appear that such ruling tended unduly to prejudice the defense of the tramway company.

It must be conceded, we think, that there was a failure in the court's charge to direct the attention of the jury to some most inculpatory acts of negligent omissions of duty on the part of the driver of the tallyho coach. A careful reading of his testimony tends to show that he entertained the idea that the sounding of the bugle, by the bugler on the coach, on its approach in the block next to the intersection of Logan and Alameda streets, was a sufficient warning to any street car that might be approaching said crossing of the coming of the coach; and that the duty was thereby laid upon the...