Kansas & Arkansas Valley Railroad Co. v. Fitzhugh

• Decision Date: 30 November 1895
• Citation: 33 S.W. 960,61 Ark. 341
• Parties: KANSAS & ARKANSAS VALLEY RAILROAD COMPANY v. FITZHUGH
• Court: Arkansas Supreme Court

33 S.W. 960

61 Ark. 341

KANSAS & ARKANSAS VALLEY RAILROAD COMPANY v. FITZHUGH

Supreme Court of Arkansas

November 30, 1895

Appeal from Crawford Circuit Court in Chancery, JEPHTHA H. EVANS Judge.

Complaint by the Kansas & Arkansas Valley Railway Company and the Little Rock & Fort Smith Railway Company against H. L Fitzhugh, administrator of the estate of John Franklin deceased. The facts are stated by the court as follows: This is a proceeding in equity to procure a new trial in an action at law. It is the same case in which an application for a writ of mandamus was presented to this court, asking tat the clerk of the Crawford circuit court be compelled to sign the bill of exceptions. The presiding judge died before signing the bill of exceptions. As the proper course to pursue was a matter of doubt, counsel for appellant not only presented a petition for mandamus, but filed a complaint in equity for a new trial. The complaint alleged that on May 4, 1893, H. L Fitzhugh, as administrator of the estate of John Franklin, deceased, had sued the defendants at law in the Crawford circuit court for the benefit of the wife and next of kin of said deceased; that said administrator, for a cause of action, alleged that said Franklin had been killed by the negligence of the employees of said railway companies while operating and running one of their engines; that said action at law had been tried before a jury in said court, the Hon. Hugh F. Thomason, judge, presiding; that a verdict and judgment for $ 3,050 had been rendered against complainants; that on the same day a motion for new trial had been filed, overruled, exceptions saved, and appeal prayed; that sixty days had been granted complainants in which to prepare and file their bill of exceptions; that, eight days afterwards, and before the bill of exceptions could be prepared and filed, the judge who had presided at the trial was stricken down while on the bench, and died shortly afterwards; that the death of the judge left no one who could sign the bill of exceptions, and that their right of appeal was thus cut off, working complainants great and irreparable wrong. The complaint set out the facts of the trial in the case at law. A bill of exceptions, containing the evidence, the rulings, and instructions of the court on the trial at law, was made an exhibit to the complaint. The bill of exceptions had been prepared and agreed to by the counsel for both parties as a correct bill of exceptions, but had not been signed by the judge. The complaint further alleged that the circuit court had committed errors prejudicial to the rights of complainants, and that the verdict of the jury was without evidence to support it, and the judgment unjust and inequitable. The complaint prayed that the cause be heard, and that the appellee be compelled to submit to a new trial at law, or that his judgment be enjoined, and for other proper relief.

Appellee filed an answer, admitting most of the facts alleged, but denying that the court committed any errors in the trial at law, or that the judgment was without evidence to support it, and denying that complainants were entitled to the relief prayed.

The cause was heard on the complaint, answer and exhibits thereto. The bill of exceptions prepared by counsel, and containing the evidence as taken down by a stenographer, was by consent read in evidence, it being agreed that it contained a full and correct statement of the evidence and rulings of the court in the trial at law.

The chancellor dismissed the complaint for want of equity, from which decree an appeal was taken.

Decree affirmed.

Dodge & Johnson for appellant.

1. A chancery court has power to grant the relief prayed. When from fraud, accident or mistake, one litigant obtains an unfair advantage of another, before or after judgment, courts of equity are bound in equity and good conscience to grant relief. In this cause, it was accident--the death of the judge presiding. Rapalje & Lawrence, Law Dict. p. 10; 1 Bouv. Law Dict. 45; Story, Eq. Jur. vol. 1, sec. 78; 1 Am. & Eng. Enc. Law, p. 824; 3 Blackst. Com. p. 43; Bisph. Eq. sec. 174; 1 Pom. Eq. Jur. 446; 15 Fla. 396; 1 Ark. 43, 195; 5 id. 501; 6 id. 84, 360; 11 id. 443, 583; 13 id. 604; 14 id. 36; 25 id. 372; 35 id. 107; Ib. 124; 38 id. 283; 40 id. 338; 40 id. 552; 38 id. 283; 48 id. 536; 51 id. 343.

2. The court should restrain defendants from enforcing the judgment at law, and compel them to submit to a new trial at law. See cases cited supra.

3. Upon the merits of the case, the proof shows that Franklin was guilty of contributory negligence, and he cannot recover. 36 Ark. 371; 36 id. 41; Ib. 451; 46 id. 513; 49 id. 257; 46 id. 555; Ib. 388; 51 id. 467; 56 id. 271.

4. When one takes employment in the service of a railroad, he assumes all the risks and hazards incident to his employment. 35 Ark. 613; 46 id. 396; Ib. 569; 51 id. 467; 56 id. 271; 145 U.S. 418; 41 Ark. 549; 53 A. & E. R. Cas. 421; 94 Cal. 326; 53 F. 61; 17 id. 882-6; 156 Mass. 503; 75 Ill. 106; 27 Minn. 137; 47 Miss. 420; 2 Mees. & W. 244; 4 Bing. 142; 14 S.W. 243; 30 A. & E. R. Cas. 163; 13 N.W. 508; Wood on Mast. & Serv. sec. 382; Sh. & Redf. Negl. sec. 99. In view of the evidence, the verdict was contrary to law and the evidence.

5. The deceased was fellow servant of the engineer, and the company is not liable. Underhill, Torts, 52; 85 Ill. 500; McKinney on Fellow Servants, p. 28, and note; 3 A. 11; 35 N.W. 582; 14 Minn. 360; 32 id. 54; 29 id. 162; 33 F. Rep. 801; 141 Mass. 565. The fellow servant act is unconstitutional; but if not, the engineer and deceased were fellow servants, under the act.

Chew & Fitzhugh and Williams & Bradshaw, for appellee.

1. It was admitted in open court that deceased and the fireman and engineer were not fellow servants. The case was tried on that theory. Appellant is bound by that admission.

2. It is conceded that courts of equity may grant relief against judgments at law, where the unsuccessful party was prevented from making a meritorious defence at law by fraud, accident or mistake, where he himself has been free from negligence. 35 Ark. 107; 40 id. 338; 51 id. 343; State v. Hill, 50 id. In these cases, it was held that when one had lost his right to have the court pass on his motion for a new trial, and could show that he was free from negligence, and had a meritorious defence, and that the judgment was unjust and unequitable, the chancellor had jurisdiction to grant a new trial. All these things must concur. But this court has never held that chancery could relieve against a judgment where a party had made his defense at law, has presented his motion for a new trial, and the same has been overruled, and he has then lost his appeal by accident. 40 Ark. 535; 51 Ark. 343; 48 id. 539.

3. Courts of equity will not grant a new trial if there is any evidence to support the verdict. 40 Ark. 555; 50 id. 458; 13 id. 604. The judgment must be unjust and unconscionable, and it must appear that the result would be different. 3 Pom. Eq. sec. 1364; High on Inj. 114, 116; 6 Johns. Ch. 479; 1 Eden, Ch. 14; 9 N.J.Eq. 585; 31 N.J.L. 329; 42 Tex. 258.

4. The trial judge having overruled the motion for a new trial, the chancellor has no jurisdiction to entertain another application for the same purpose. It is res judicata. Cases supra; 16 Am. &. Eng. Enc. Law, 621; 4 Bibb, 168; 4 Ind. 313; Herm. Est. p. 569; 1 Johns. Ch. 91; 2 Black, Judg. 691-2; 4 Bibb, 168; 11 F. Rep. 104; 15 id. 299; 10 Mo. 100; High on Inj. 115; 20 Wis. 42, 205; 35 N.E. 615; 147 Ill. 410.

5. Appellants were guilty of negligence in not presenting the bill of exceptions to the judge before his death. 51 Ark. 278; 79 Ky. 477; 38 Ark. 283; 2 Story, Eq. 174-80; 5 Ark. 502; 3 Pom. Eq. 1364, and note; 6 Johns. Ch. 89; 18 Vt. 45; 2 Paige, 321; 4 Ga. 175; 31 N.J.Eq. 318; 60 Ind. 203; 73 Ill. 205.

6. Upon the merits of the case, it is shown that appellants were grossly negligent in not furnishing deceased a safe place to work, and in not providing reasonable rules and regulations for the management of their yard and the control of their engines. 39 Ark. 29; 54 id. 289; 48 id. 345; 8 Am. & Eng. R. Cases, 105; 15 S.W. 108; 23 id. 1056; Wood on Railways, 1488; 28 Am. & Eng. R. Cases, 538; 17 S.W. 185; 10 Am. & Eng. R. Cases, 658; 59 N.W. 192; 2 Am. & Eng. R. Cases, 70; 12 id. 108; 5 id. 590.

7. The jury found there was no contributory negligence, and this finding is sustained by ample evidence. 8 S.W. 129, and note; 16 id. 335; 54 Ark. 289; 114 U.S. 617; 46 Ark. 403; 128 U.S. 91; 76 Wis. 130; Bailey on Master's Liability, p. 445; 139 U.S. 558; 10 Am. & Eng. R. Cases, 662; 36 Ark. 50; 46 id. 394.

RIDDICK J. BUNN, C. J., dissenting.

OPINION

Jurisdiction of equity to grant new trials.

RIDDICK, J., (after stating the facts.)

The first question presented is whether, in a case where there has been a trial and judgment at law, and the right of appeal has been cut off by the death of the presiding judge before signing the bill of exceptions, a court of equity has power to grant relief against such a judgment, however unjust and oppressive it may be. The practice in such cases is not uniform in the different states of the Union. In some of them it seems to be held that there is no relief. Davis v. President of Menasha Village, 20 Wis. 194. In other states, the appellate courts grant a new trial as a matter of right, without regard to the merits of the controversy, where a party has, by the death of the presiding judge, lost the power to file a bill of exceptions. State v. Weiskittle, 61 Md. 48; Wright v. Judge of Superior Court, 41 Mich 726, 49 N.W. 925; Commissioners v. Steamship Co. 98 N.C. 163, 3 S.E. 505. The exact point has never been before this court, though in one case it was said...