Lancaster v. Foster
| Decision Date | 15 November 1918 |
| Docket Number | 3231. |
| Citation | 260 F. 5 |
| Parties | LANCASTER et al. v. FOSTER et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rehearing Denied December 19, 1918.
S. N Russell, of El Paso, Tex., for plaintiffs in error.
Walter H. Scott, of El Paso, Tex. (Winter, McBroom & Scott, of El Paso, Tex., on the brief), for defendants in error.
Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.
This was an action by the defendants in error, the widow and surviving children of A. G. Foster, deceased, to recover damages resulting from the death of the latter, which was attributed to negligence in the operation of a railroad train, which it was alleged struck him as he was undertaking to cross the railroad track where it was intersected by a road on which the deceased at the time was walking. It was pleaded as a defense that, if the deceased was struck and killed by the defendant's train as alleged, it was through and on account of his own negligence and carelessness in failing to look and listen before going on the track at the crossing. An exception was reserved to the action of the court in overruling a motion, made by the defendants after all the evidence offered by the plaintiffs had been introduced, that the court instruct the jury to find a verdict in favor of the defendants. Following this ruling the defendants introduced other evidence, which is set out in the bill of exceptions. After all the evidence was in, the defendants made another motion that the court instruct the jury to find in their favor, but the last-mentioned motion was not made until after the court had submitted the case to the jury and the jury had retired. The arguments in the case were concluded just at noon. When the court reconvened for the afternoon session counsel for defendants were not present, and did not return to the courtroom until about 20 or 25 minutes after the court reconvened, and after the court had charged the jury and the jury had retired. Promptly after the return of the defendants' counsel to the courtroom they requested that the jury be directed to return a verdict for the defendants.
In behalf of the defendants in error it is contended that the first-mentioned exception cannot be availed of by the plaintiff in error, because the latter thereafter introduced other evidence. A number of decisions are cited which indicate the existence of a rule to that effect. There is an obviously good reason to support such a rule, where the record does not disclose the subsequently introduced evidence, or where that evidence is disclosed and it is such as to make the evidence as a whole enough to justify its submission to the jury. If the subsequently introduced evidence is not disclosed to the appellate court, it may be presumed that the plaintiff's case was strengthened by it, and that the evidence as a whole was such that an instruction to find for the defendant could not properly have been given. If any deficiency in the evidence offered by the plaintiff is shown, or is to be presumed, to have been supplied by the evidence offered by the defendant, the latter is in no position to complain of the court's refusal to direct a verdict in his favor. Such a situation was presented in the case of Grand Trunk Railway Co. v. Cummings, 106 U.S. 700, 1 Sup.Ct. 493, 27 L.Ed. 266. The bill of exceptions in that case did not show the evidence introduced by the defendant after the overruling of its motion that a verdict in its favor be directed. It was held that, under such circumstances, it must be presumed that when the case was closed on both sides there was enough testimony to make it proper to leave the issues to be settled by the jury. There is no room for such a presumption where all the evidence adduced on both sides is contained in the bill of exceptions, and neither the part of it which was before the court when it refused to direct a verdict for the defendant nor all the evidence on both sides was enough to make it proper to leave the issues to be settled by the jury.
The evidence introduced by the defendants in the instant case had no tendency to support the claim asserted by the plaintiffs or to supply any deficiency in the evidence offered by the latter. If it was error to overrule the motion for a directed verdict when it was first made, nothing afterwards occurred to cure that error. The sole tendency of evidence introduced by a defendant might be to rebut or discredit that offered by the plaintiff. The act of a defendant in so undertaking to destroy whatever probative value the plaintiff's evidence might have seemed to have could not well be regarded as an abandonment or waiver by the defendant of a motion made by him at the conclusion of the plaintiff's evidence, and based on...
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Edmiston v. Texas & N. O. R. Co.
...76 S.W. 222, error refused; Tucker v. International & G. N. R. R. Co., Tex.Civ.App., 67 S.W. 914, error refused; and Lancaster v. Foster, 260 F. 5, 171 C.C.A. 41. In such circumstances it is held, where the injured person failed to see or hear the appoaching train or engine, the view of the......
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...of waiving the legal issue raised by the motion. See also Bates v. Miller, 133 F.2d 645, 648 (2d Cir. 1943), citing Lancaster v. Foster, 260 F. 5 (5th Cir. 1918). In the absence of any authority to the contrary, in a case combining the kind of judicial assurance concerning preservation of r......
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...overruling of a motion to dismiss, made at the close of the plaintiff's evidence, under the circumstances there shown. In Lancaster v. Foster (5th C. C. A.) 260 F. 5, the court held that an exception to the denial of the motion for a directed verdict, made at the close of plaintiff's case, ......
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