Dwyer v. St. Louis & S.F.R. Co.

• Decision Date: 29 June 1892
• Citation: 52 F. 87
• Parties: DWYER et al. v. ST. LOUIS & S.F.R. CO.
• Court: U.S. District Court — Western District of Arkansas

52 F. 87

DWYER et al. v. ST. LOUIS & S.F.R. CO.

United States Circuit Court, W.D. Arkansas.

June 29, 1892

Rogers & Read, for plaintiffs.

B. R Davidson, for defendant.

PARKER District Judge.

Suit against defendant by plaintiffs, as the wife and children of James Dwyer, deceased. Recovery prayed for on the ground that defendant negligently caused the death of James Dwyer employe of defendant, in the capacity of yard master, at Ft Smith, Ark. Jury trial had. Verdict for plaintiff for $17,820. Defendant, by its counsel, files a motion for new trial. The first ground of said motion is that the court erred in overruling defendant's motion to require plaintiffs to elect on which count of complaint they would rely. There is no error in this action of the court. The plaintiffs relied on a state of negligence created by defendant. They simply set out in the two counts of their complaint the facts upon which they relied to show a condition of negligence. There is here but one cause of action, and it arises from the negligence of defendant in killing James J. Dwyer. But if there were two separate causes of action they might be jointed, and the plaintiffs could proceed to try both of them at the same time, as, where two causes of action of the same nature exist, they may be joined in the same complaint. Section 5014, Mansf.Dig.Laws Ark.par. 6, which provides 'that all claims arising from injuries to persons or property may be joined,' and, when so joined, they may, of course, be tried in the same suit; so I can see nothing in this ground for a new trial.

The second ground is that the court erred in admitting testimony over objection of defendant, and the third is that the court erred in excluding testimony offered by defendant. I do not consider either of these causes as having any weight, especially as no specific errors of this kind have been pointed out by counsel.

The fourth cause is that the court erred in overruling defendant's motion to instruct the jury to find the issues for the defendant. This cause is not one upon which a new trial can be granted, because there were facts on the side of plaintiff of such proving power as made it necessary that they should be passed on by the jury. The case is not of that character that can be taken by the court from the jury. It is one which, in my judgment, fairly depends upon the effect or weight of evidence, and such a case could not be withdrawn from the jury, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict in opposition to it. Insurance Co. v. Doster, 106 U.S. 30, 1 S.Ct. 18; Insurance Co. v. Lathrop, 111 U.S. 612, 4 S.Ct. 533; Township of Montclair v. Dana, 107 U.S. 162, 2 S.Ct. 403. If the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court may direct a verdict for the defendant. Such is the rule laid down in Randall v. Railroad Co., 109 U.S. 478, 3 S.Ct. 322; Marshall v. Hubbard, 117 U.S. 415, 6 S.Ct. 806; Harris v. Railroad Co., 35 F. 116; North P.R. Co. v. Commercial Nat. Bank, 123 U.S. 727, 8 S.Ct. 266. I am not able to say that the facts in this case warrant the application of the rule asked for by defendant.

The fifth cause for new trial is that the court erred in giving its charge to the jury as the law of the case over the objection of the defendant, the objectionable provisions at the time being specified or pointed out. Without dwelling in detail on the charge of the court as given, and on the propositions the court refused to give, I think the law was clearly and fully declared. To my mind, both reason, justice and authority sustain the charge of the court. The following part of the charge is in relation to the fact that deceased was not called on either to quit the service, or fail or refuse to perform the work devolving on him, although he knew of the dangerous condition of defendant's car yard, provided the same was not so far dangerous as to threaten immediate injury, or the condition of the yard was not so dangerous but that the deceased, James J. Dwyer, as a reasonable and prudent man, as he was, could come to a well-grounded conclusion that he could safely perform his duties for the benefit of his employer. If that was the case, then he acted with prudence and care, as measured by the acts of a man possessing these characteristics. In such a case, there would not be that case of patent, flagrant danger that would signal deceased to take no chances, or, if he took them, he did so at his peril. If the danger was no greater than that described in the charge of the court, then reasonable and prudent men in the performance of duty would confront such danger, and what such men would do, under such circumstances, the deceased might do without being chargeable with contributory negligence, as the rule for his guidance is derived from what reasonable men would do under the same circumstances. The above remarks apply with equal force to that part of the charge relating to the construction of the foreign fruit car, upon which rest one ground of the negligence of the defendant, as set out in the complaint. The authorities sustaining this principle are very numerous. The proposition is very clearly stated by Judge WALLACE in Railroad Co. v. Young, 49 F. 723, and many authorities are there referred to as sustaining the...