Diederich v. American News Co.
Decision Date | 30 April 1942 |
Docket Number | No. 2460.,2460. |
Parties | DIEDERICH et al. v. AMERICAN NEWS CO. |
Court | U.S. Court of Appeals — Tenth Circuit |
T. Austin Gavin, of Tulsa, Okl. (Wendell B. Barnes, of Tulsa, Okl., on the brief), for appellants.
R. D. Hudson, of Tulsa, Okl. (W. E. Hudson, of Tulsa, Okl., on the brief), for appellee.
Before PHILLIPS, MURRAH, and WILLIAMS, Circuit Judges.
Peter J. Diederich and Rose Marie Diederich1 brought this action against the American News Company2 to recover damages for the death of Bernard J. Diederich,3 alleging it to have been caused by the negligence of the News Company.
The sole question presented is whether the court erred in directing a verdict for the News Company on the ground that it appeared from the evidence, as a matter of law, that the decedent assumed the risk of the defective equipment upon which the claim of negligence was predicated.
Section 6, Art. XXIII, of the Oklahoma Constitution, O.S.1941, p. 106, provides: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury."
It is not contended that the undisputed evidence did not establish, as a matter of law, that decedent assumed the risk of the defective equipment. It is urged, however, that the Oklahoma constitutional provision is controlling in the federal courts, and that the trial court should have submitted that issue to the jury.
Amendment VII to the Federal Constitution guarantees to litigants in suits at common law, where the value in controversy exceeds $20, the right of trial by jury. This right guaranteed by the Federal Constitution is the right of trial by jury as at common law. It means a trial by a jury of twelve men in the presence and under the superintendence of the judge empowered to instruct them on the law and advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is contrary to the law or the evidence.4
In Baltimore & Carolina Line, Inc., v. Redman, 295 U.S. 654, 657, 55 S.Ct. 890, 891, 79 L.Ed. 1636, the court said: 5
In Herron v. Southern Pacific Co., 283 U. S. 91, 51 S.Ct. 383, 384, 75 L.Ed. 857, in considering § 5, Art. 18, of the Arizona Constitution, substantially identical with § 6, of Art. XXIII, of the Oklahoma Constitution, the court said:
Counsel for plaintiffs urge that under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, ...
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