Empire State Cattle Co. v. Atchison, T. & S.F. Ry. Co.

• Citation: 147 F. 457
• Decision Date: 09 July 1906
• Docket Number: 2,276.
• Parties: EMPIRE STATE CATTLE CO. et al. v. ATCHISON, T. & S.F. RY. CO. [*]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

147 F. 457

EMPIRE STATE CATTLE CO. et al. v. ATCHISON, T. & S.F. RY. CO. ^[*]

No. 2,276.

United States Court of Appeals, Eighth Circuit.

July 9, 1906

James S. Botsford (Buckner F. Deatherage and Odus G. Young, on the brief), for plaintiffs in error.

Gardiner Lathrop and C. Angevine (Robert Dunlap, Wm. R. Smith and Angevine & Cubbison, on the brief), for defendant in error.

This was an action by the cattle company and others to recover from the railway company damages alleged to have been sustained by a wrongful deviation and the negligence of the defendant in respect of a shipment of 778 head of cattle over its lines, resulting in the death of part of them and injury to the others. The acts and omissions of the defendant which were complained of were in connection with and in view of an unprecedented flood in May, 1903, in the Kansas and Missouri rivers. The defendant received the cattle May 25, 1903, in Texas, for transportation over its lines to Atchison, Kan and thence over connecting lines to South Dakota. It was claimed that the defendant was negligent and acted wrongfully in the following particulars:

(1) In detaining the cattle at Strong City, Kan., south of the Kansas river, from May 27th to the 29th, and in not forwarding them on the 27th across the river at Topeka and thence to Atchison, where they could have been delivered to a connecting carrier without interference from the rising waters.

(2) After keeping them at Strong City until the 29th of May, in not then detaining them longer until the subsidence of the flood would permit of their further transportation in safety.

(3) In their deviation from the route contracted for to Kansas City at the mouth of the Kansas river between which point and Atchison the defendant had no connecting line.

(4) In endeavoring to head off the flood by landing and depositing the cattle in pens on the bank of the Kansas river near its mouth, when it knew of the flood and its continued rise from May 27th to the 30th.

(5) In failing to move the cattle from their position of peril at Kansas City after having wrongfully transported and placed them there.

The trial was to a jury, and at the conclusion of the evidence the court directed a verdict for the defendant. This writ of error challenges the action of the court in directing the verdict and in certain other respects, to which attention is directed in the following opinion.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

At the conclusion of the evidence the plaintiffs preferred a written request that the court direct a verdict in their favor and by a separate writing also asked that 13 other instructions directed to particular features of the case by given to the jury. The defendant likewise asked that a verdict be directed in its favor. After an extended consideration of both requests for a directed verdict the court denied the plaintiffs' and sustained that of the defendant. The special requests of the plaintiffs were denied. A verdict was accordingly returned for the defendant, and it had judgment.

It is a familiar rule that if at the conclusion of the evidence in an action at law each party requests the court to direct a verdict in his favor and the court acts upon the invitation thus given and directs the jury to return a verdict for one of them and against the other, the only questions open on appeal are: First, was there substantial evidence supporting the conclusion of the court? and, second, did any error of law occur during the trial? This doctrine first found expression in Beuttell v. Magone, 157 U.S. 154, 15 Sup.Ct. 566, 39 L.Ed. 654, where the court said:

'As however, both parties asked the court to instruct a verdict, both affirmed that there was no disputed question of fact which could operate to deflect or control the question of law. This was necessarily a request that the court find the facts, and the parties are, therefore, concluded by the finding made by the court, upon which the resulting instruction of law was given. The facts having been thus submitted to the court, we are limited in reviewing its action to the consideration of the correctness of the finding on the law, and must affirm if there be any evidence in support thereof.'

This court has applied the rule in the following cases: Western Express Co. v. United States (C.C.A.) 141 F. 28; Phenix Insurance Co. v. Kerr, 64 C.C.A. 251, 129 F. 723, 66 L.R.A. 569; United States v. Bishop, 60 C.C.A. 123, 125 F. 181. It has also been applied in the seventh circuit (Insurance Co. v. Wisconsin Central Railway Co., 134 F. 794, 67 C.C.A. 300). In the fifth circuit (McCormick v. National City Bank (C.C.A.) 142 F. 132; West v. Roberts, 68 C.C.A. 58, 135 F. 350; Bradley Timber Co. v. White, 58 C.C.A. 55, 121 F. 779). And in the second circuit (Magone v. Origet, 17 C.C.A. 363, 70 F. 778; Merwin v. Magone, 17 C.C.A. 361, 70 F. 776; Chrystie v. Foster, 9 C.C.A. 606, 61 F. 551. See Sigua Iron Co. v. Greene, 31 C.C.A. 477, 88 F. 207).

It is said, however, that by submitting the 13 requests for special instructions the plaintiffs showed their purpose not to so invoke the action of the court that they would be thereafter precluded from going to the jury. Some warrant for this contention may be found in the cases from the second circuit, in each of which it is recited either in the opinion of in the preceding statement that when the requests by both parties for a directed verdict were made neither of them requested that any question of fact should be submitted to the jury. The qualification, if it be one, suggested by these cases seems to have had its origin in a rule of practice obtaining in the state of New York, in which all of them arose. Sutter v. Vanderveer, 122 N.Y. 652, 25 N.E. 907; Kirtz v. Peck, 113 N.Y. 222, 21 N.E. 130; Koehler v. Adler, 78 N.Y. 287. The court of appeals of the Sixth Circuit came to a similar conclusion in Minahan v. Railway, 138 F. 37, though the case there was peculiarly circumstanced. At the conclusion of the evidence the defendant submitted a request for a directed verdict, and the trial court, while passing upon it, indicated that it was about to grant it. It then permitted plaintiff's counsel to interrupt and to present a number of requests for instructions, the first of which was that the plaintiff was entitled to a verdict; the only question for a jury being as to the amount of damages. The others related to matters of law and fact involved in the case. When permission was thus given plaintiff's counsel to file his requests the court assured him he should have the benefit of them. A verdict for the defendant was nevertheless directed. It was held that the rule in question must rest upon the implication of consent, and that it was repelled by the request for additional instructions, and by the further fact that the trial court was co-operating with plaintiff's counsel in his effort to save the questions so presented.

In Insurance Co. v. Wisconsin Central Railway Co., supra, the Court of Appeals of the Seventh Circuit, after reciting that both parties moved for a directed verdict, said:

'The record shows that the court reviewed the evidence and stated the ultimate facts substantially as we have done, and thereon announced the legal conclusion that the policies were in force. After the court thus virtually ended the case the insurance company could not revive its right to demand a jury trial and to predicate error on the court's refusal to submit the cause to the jury.'

We are of the opinion that where both parties invoke the action of a trial court by requests for a directed verdict, and the request of one of them is accompanied, as in this case, or followed by requests for other instructions to the jury, such other requests do not, by themselves, amount to a withdrawal of the one for a directed verdict. The request for a directed verdict is first in insistence upon the attention and action of the court. It searches the entire case for the legal sufficiency and effect of the evidence, and as long as it remains before the court to be acted upon it takes precedence. If granted, the others serve no purpose. The question should not be determined wholly by a presumed intention of the party to waive or not to waive a submission of the facts to the jury....