Mitchell v. White Consolidated, Inc.

• Decision Date: 01 November 1949
• Docket Number: No. 9683.,9683.
• Citation: 177 F.2d 500
• Parties: MITCHELL et al. v. WHITE CONSOLIDATED, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

177 F.2d 500 (1949)

MITCHELL et al. v. WHITE CONSOLIDATED, Inc.

No. 9683.

United States Court of Appeals Seventh Circuit.

November 1, 1949.

Robert H. Moore, Gary, Ind., James P. Gleason, Michigan City, Ind., Jay E. Darlington, Hammond, Ind., for appellants.

Oscar C. Strom, Gary, Ind., Edmond J. Leeney, Hammond, Ind., Irving Herriott, Charles O. Parker, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiffs' several suits to recover damages for personal injuries were consolidated in the District Court. Defendant moved to dismiss the consolidated amended complaint for failure to state claims upon which relief could be granted. The court sustained the motion and entered judgment dismissing the complaint on March 15, 1948. Under Federal Rules of Civil Procedure, amended Rule 73(a), 28 U.S.C.A., an appeal could properly have been taken only within 30 days thereafter. However, for some reason not clarified by the record, plaintiffs perfected their appeal some 86 days after entry of judgment but within the 90 days allowed for an appeal under the formerly existing rule.

Upon review this court did not consider the merits of the judgment but dismissed the appeal on the authority of Ray et al. v. Morris et al., 7 Cir., 170 F.2d 498, because of the failure to appeal within the time prescribed by Rule 73(a) of the Rules of Civil Procedure. Upon certiorari, the Supreme Court, 336 U.S. 958, 69 S.Ct. 889, reversed and remanded the cause to us to determine "pursuant to Rule 86(b) of the Rules of Civil Procedure, 28 U.S.C.A., whether the application of amended Rule 73 (a) to this particular action would work injustice."

Plaintiffs claim substantial damages resulting, as they say, from the alleged negligence of defendant. If they are to be deprived of an opportunity to test the validity of the judgment dismissing their assertion of rights of action they will have had no day in court on the merits. It may well be that their counsel, in the absence of wide-spread notice that the time for appeal had been reduced from 90 to 30 days, overlooked the change, but, if so, it would seem unjust to deprive their clients of a hearing upon their claims for substantial damages. Preston v. Aetna Life Ins. Co., 7 Cir., 174 F.2d 10. The Rules of Civil Procedure reflect a well considered policy to simplify the assertion and trial of civil rights; they discourage technicality and form and seek to bring about determination of the rights of litigants upon the merits and, to that end, are to be liberally construed. Fakouri v. Cadais et al., 5 Cir., 147 F.2d 667. Under the circumstances of this case, considering the purpose and intent of the rules and their underlying motivation, we conclude that it would work an injustice to plaintiffs to invoke amended Rule 73(a) against them. Accordingly we hold that they are excused from perfecting their appeal within 30 days.

Whether the judgment of the District Court that plaintiffs failed to state a cause of action was correct depends upon the averments of the complaint, pertinent portions of which follow. Defendant was a private contractor, resurfacing Broadway, a north and south street, in Gary, Indiana, 66 feet wide, in the central portion of which were located street car tracks and steel poles to carry trolley wires. The entire street was paved, the middle one-third by the trolley company. The public traveled over the car tracks and on both sides of them. Defendant was engaged in resurfacing the pavement on both sides of the highway but on only one side at a time, so as to leave the other open for traffic. At the time of the accident, it was working on the west side of the street, resurfacing about 20 feet between the curb and the street car lines. It had placed a barricade at each of the north and south ends of the area in which it was conducting operations and, at each of these barricades, yellow flare lights to warn the public. Plaintiffs were traveling south in a bus at night. The bus driver, approaching the barrier, observed it and turned to the left so as to get to the east on to that portion of the highway still open to traffic. Some 75 feet or more to the south of the barrier was located the first of the trolley poles. Shortly after the driver turned into the road open for traffic, he struck this pole and the injuries complained of resulted.

In their amended complaint plaintiffs asserted, in addition to these facts, that at the time of the accident the statutes of Indiana provided that whenever any public highway shall be closed and the traffic is thereby obliged to make a detour around such closed highway, a barrier shall be erected "and a red light shall be displayed at each end or terminus of such closed * * * highway * * *," Section 36-1605, Burns' Ind.Sts.1933 and that, in addition to the barrier and in close proximity thereto, "a red light shall be installed and displayed in such manner as to be in plain sight of any person approaching * * * and * * * be kept burning from sunset to sunrise of each and every day during which such highway is closed to traffic." Section 36-1607, Burns' Ind.Sts.1933.

Plaintiffs complained further: "Plaintiffs would further state that the defendant in barricading said highway did carelessly and negligently do so in the following manner, to-wit: `(a) That when said public highway was closed, as aforesaid, and by reason of said facts the traffic was thereby obliged to make a detour around said closed highway, defendant at the time and place aforesaid, did not display a red light at said end or terminus of said closed highway and did not in addition to the barrier and in close proximity thereof have a red light installed and displayed in such manner as to be in plain view of any person including plaintiffs approaching such barrier and did not have such light burning at the time and place of plaintiffs' said accident which was between sunset and sunrise on the day aforesaid during which time such highway was closed to traffic contrary to the statutory and mandatory provisions of the sections 36-1605 and 36-1607, Burns' Revised Statute, 1933, being acts of 1921, Chapter 90, Section 1 and 3, page 190. On the contrary, defendant at said time and place did not display or have installed a red light of any character but the only light of any kind then and there displayed or installed by defendant consisted merely of some bomb torches which consisted only of a flickering, smoking, yellowish, open flame which produced no red flame whatsoever.'" Having made these averments, the amended complaint concluded that all of the injuries to each of the plaintiffs were "the proximate result of each and all the acts of negligence of the defendant to the damage of each of said plaintiffs in the sum of * * *."

The parties agree that the original complaint was the same as that involved in White v. White Consolidated, 7 Cir., 157 F.2d 758, in which we held that the defendant owed to the plaintiff no duty to warn the plaintiff of the existence of the pole placed by the Gray Railways Company on a part of the street over which the defendant had no control and which was in no way connected with the defendant's work or the...