Dernberger v. Baltimore & O.R. Co.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation234 F. 405
Decision Date31 July 1916
PartiesDERNBERGER v. BALTIMORE & O.R. CO.

234 F. 405

DERNBERGER
v.
BALTIMORE & O.R. CO.

United States District Court, N.D. West Virginia.

July 31, 1916


[234 F. 406]

R. E. Bills, C. M. Hanna, and Reese Blizzard, all of Parkersburg, W. Va., for plaintiff.

James W. Vandervort and B. M. Ambler, both of Parkersburg, W. Va., for defendant.

DAYTON, District Judge.

Upon the trial of this case, I felt, under the law, in duty bound to sustain the defendant's motion and direct a verdict for it. Motion has been made to set aside this verdict and grant plaintiff a new trial, and it is this motion I am now to pass upon. As matter of introduction it seems proper to review, to a limited extent, the authorities enunciating the rule governing federal courts in determining when a verdict should be directed by the court and when the matter should be submitted to the jury. Such review is constantly necessary, because the great number of these negligence cases arising in our courts and constantly increasing-- cases always appealing to a greater or lesser degree to our human sympathies-- makes the temptation a constant one for judges to shirk the grave responsibility imposed upon them by the law in this particular, and allow the jury to do its will.

In Commissioners, etc., v. Clark, 94 U.S. 278, at page 284, 24 L.Ed. 59, Mr. Justice Clifford says:

'Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.'

In Meguire v. Corwine, 101 U.S. 108, at page 111, 25 L.Ed. 899, Mr. Justice Swayne says:

'A judge has no right to submit a question where the state of the evidence forbids it.'

And again, in Bowditch v. Boston, 101 U.S. 16, at page 18, 25 L.Ed. 980, he says:

'It is now a settled rule in the courts of the United States that whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves * * * expense. It gives scientific certainty to the law in its application to the facts and promotes the ends of justice. Merchants' Bank v. State Bank, 10 Wall. 604, 637 (19 L.Ed. 1008); Improvement Company v. Munson, 14 Wall. 442 (20 L.Ed. 867); Pleasants v. Fant, 22 Wall. 116 (22 L.Ed. 780).'

This proposition is affirmed in Anderson v. Beal, 113 U.S. 227, 241, 5 Sup.Ct. 433, 28 L.Ed. 966, and Arthur v. Cumming, 91 U.S. 362, 365, 23 L.Ed. 438; In Delaware, etc., R.R. Co. v. Converse, [234 F. 407] 139 U.S.at page 472, 11 Sup.Ct.at page 570, 35 L.Ed. 213, Mr. Justice Harlan says:

'But it is well settled that the court may withdraw a case from them altogether and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Phoenix Ins. Co. v. Doster, 106 U.S. 30, 32 (1 Sup.Ct. 18, 27 L.Ed. 65); Griggs v. Houston, 104 U.S. 553 (26 L.Ed. 840); Randall v. Baltimore & Ohio Railroad, 109 U.S. 478, 482 (3 Sup.Ct. 322, 27 L.Ed. 1003); Anderson Co. Commissioners v. Beal, 113 U.S. 227, 241 (5 Sup.Ct. 433, 28 L.Ed. 966); Schofield v. C. & St. P. Ry. Co., 114 U.S. 615, 618 (5 Sup.Ct. 1125, 29 L.Ed. 224.) 'It would be an idle proceeding,' this court said in North Penn. Railroad v. Commercial Bank, 123 U.S. 727, 733 (8 Sup.Ct. 266, 31 L.Ed. 287), 'to submit the evidence to the jury when they could justly find only in one way.''

In Patton v. Texas & Pacific Ry. Co., 179 U.S.at page 660, 21 Sup.Ct.at page 276, 45 L.Ed. 361, Mr. Justice Brewer quoting this last passage, states 'that cases are not to be lightly taken from the jury,' but adds:

'At the same time the judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who in our jurisprudence stands charged with full responsibility.'

There has been no modification of these principles in the recent cases. District of Columbia v. Moulton, 182 U.S. 576, 582, 21 Sup.Ct. 840, 45 L.Ed. 1237; McGuire v. Blount, 199 U.S. 142, 148, 26 Sup.Ct. 1, 50 L.Ed. 125; Empire State Cattle Co. v. Atchison Ry. Co., 210 U.S. 1, 10, 28 Sup.Ct. 607, 52 L.Ed. 931, 15 Ann.Cas. 70; Hepner v. United States, 213 U.S. 103, 112, 53 L.Ed. 720, 27 L.R.A. (N.S.) 739, 16 Ann.Cas. 960. In this last case the Supreme Court applies the rule in an action brought by the government to enforce a statutory penalty and sustained a directed verdict for the plaintiff. The application of this rule to negligence cases has been many times reiterated. Patton v. T. & P. Ry. Co., 179 U.S. 658, 659, 21 Sup.Ct. 275, 45 L.Ed. 361; Southern Pacific Co. v. Pool, 160 U.S. 438, 440, 16 Sup.Ct. 338, 339, 40 L.Ed. 485, where it is said:

'There can be no doubt, where evidence is conflicting, that it is the province of the jury to determine, from such evidence, the proof which constitutes negligence. There is also no doubt, where the facts are undisputed or clearly preponderant, that the question of negligence is one of law. Union Pacific Railway Company v. McDonald, 152 U.S. 262, 283 (14 Sup.Ct. 619, 627, 38 L.Ed. 434). The rule is thus announced in that case: 'Upon the question of negligence * * * the court may withdraw a case from the jury altogether, and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.' Delaware, Lackawanna, etc., Railroad v. Converse, 139 U.S. 469, 472 (11 Sup.Ct. 569, 35 L.Ed. 213) and authorities there cited; Elliott v. Chicago, Milwaukee & St. Paul Railway, 150 U.S. 245 (14 Sup.Ct. 85, 37 L.Ed. 1068); Anderson County Com'rs v. Beal, 113 U.S. 227, 241 (5 Sup.Ct. 433, 28 L.Ed. 966).'

The law, sound reason, and common experience point out that there is peculiar necessity for the enforcement of this rule in negligence cases. [234 F. 408]

The law's recognition of this fact cannot be better stated than it has been by the Circuit Court of Appeals for this Fourth Circuit, speaking through Judge Brawley, in Travelers' Ins. Co. v. Selden, 78 F. 285, 290, 24 C.C.A. 92, 96, as follows:

"Such is the constant practice,' says Justice Swayne in Bowditch v. Boston, 101 U.S. 16 (25 L.Ed. 980), because 'it gives scientific certainty to the law in its application to the facts, and promotes the ends of justice.' The court cannot allow the jury to assume the truth of any material fact without some evidence legally sufficient to establish it, and the jury cannot legally infer the existence of a material fact unless there is some proof of it. ' The truth of the facts and circumstances offered in evidence in support of the allegations on the record must be determined by the jury. But it is for the court to decide whether or not those facts and circumstances, if found by the jury to be true, are sufficient, in point of law, to maintain the allegations in the pleadings.' Railroad Co. v. Woodson, 134 U.S. 622, 10 Sup.Ct. 630 (33 L.Ed. 1032). It therefore follows that, when the facts and circumstances are admitted and undisputed, it becomes a question of law for the court to decide whether they support the averments of the pleadings, and it is error to leave a question of law to the arbitrary determination of a jury, for everybody knows that a case of this kind can have but one result if left to a jury, moved, as it must be, by the natural and creditable instincts of human nature, to sympathize with the afflicted. No case can be conceived which more strongly invokes the obligation to duty imposed upon the courts as set forth in the oftquoted language of Mr. Justice Miller in Pleasants v. Fant, 22 Wall. 116 (22 L.Ed. 780): 'It is the duty of the court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of his lawful rights in the conduct of a trial.''

The Circuit Court of Appeals for the Eighth Circuit, in Midland Valley R. Co. v. Fulgham, 104 C.C.A. 151, 181 F. 91, has felt compelled, apparently from its experience in these negligence cases, to condemn what is a very general weakness in jury deliberation, when it says:

'Conjecture is an unsound and unjust foundation for a verdict. Juries may not legally guess the money or property of one litigant to another. Substantial evidence of the facts which constitute the cause of action * * * is indispensable to the maintenance of a verdict sustaining it.'

The statement has been made above that sound reason and common experience indicate a peculiar necessity for the enforcement of this rule in negligence cases. This statement is made advisedly, after long and earnest study of existing conditions. Courts must enforce the law as it is, not as they would have it be. Inferior courts must...

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3 practice notes
  • Kilmer v. Norfolk & W. Ry. Co., No. 2961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 17, 1930
    ...v. Railroad Company, 114 U. S. 615, 5 S. Ct. 1125, 29 L. Ed. 224; Dernberger v. Railroad Company (C. C. A.) 243 F. 21; and Id. (D. C.) 234 F. 405. Neininger v. Cowan et al. (C. C. A.) 101 F. 787; Elliott v. Railroad Company, 150 U. S. 245, 14 S. Ct. 85, 37 L. Ed. We desire to especially cal......
  • Hamden Lodge No. 517, I.O.O.F. v. Ohio Fuel Gas Co., No. 24385.
    • United States
    • United States State Supreme Court of Ohio
    • February 7, 1934
    ...F.(2d) 270 at page 271;McNabb v. Virginian Ry. Co. (C. C. A.) 55 F.(2d) 137 at page 138;Dernberger v. Baltimore & Ohio Rd. Co. (D. C.) 234 F. 405 at page 406. In this court the doctrine is frequently said to have had its beginning in the case of Ellis & Morton v. Ohio Life Insurance......
  • Hamden Lodge v. Gas Co., 24385
    • United States
    • United States State Supreme Court of Ohio
    • February 7, 1934
    ...270, at page 271; McNabb v. Virginian Ry. Co. (C.C.A.), 55 F. (2d), 137, at page 138; Dernberger v. Baltimore & Ohio Rd. Co. (D.C.), 234 F. 405, at page 406. In this court the doctrine is frequently said to have had its beginning in the case of Ellis & Morton v. Ohio Life Insurance ......
3 cases
  • Kilmer v. Norfolk & W. Ry. Co., No. 2961.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 17, 1930
    ...v. Railroad Company, 114 U. S. 615, 5 S. Ct. 1125, 29 L. Ed. 224; Dernberger v. Railroad Company (C. C. A.) 243 F. 21; and Id. (D. C.) 234 F. 405. Neininger v. Cowan et al. (C. C. A.) 101 F. 787; Elliott v. Railroad Company, 150 U. S. 245, 14 S. Ct. 85, 37 L. Ed. We desire to especially cal......
  • Hamden Lodge No. 517, I.O.O.F. v. Ohio Fuel Gas Co., No. 24385.
    • United States
    • United States State Supreme Court of Ohio
    • February 7, 1934
    ...35 F.(2d) 270 at page 271;McNabb v. Virginian Ry. Co. (C. C. A.) 55 F.(2d) 137 at page 138;Dernberger v. Baltimore & Ohio Rd. Co. (D. C.) 234 F. 405 at page 406. In this court the doctrine is frequently said to have had its beginning in the case of Ellis & Morton v. Ohio Life Insurance & Tr......
  • Hamden Lodge v. Gas Co., 24385
    • United States
    • United States State Supreme Court of Ohio
    • February 7, 1934
    ...(2d), 270, at page 271; McNabb v. Virginian Ry. Co. (C.C.A.), 55 F. (2d), 137, at page 138; Dernberger v. Baltimore & Ohio Rd. Co. (D.C.), 234 F. 405, at page 406. In this court the doctrine is frequently said to have had its beginning in the case of Ellis & Morton v. Ohio Life Insurance & ......

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