Mt. Adams & E. P. Inclined Ry. Co. v. Lowery

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 F. 463 (6th Cir. 1896)
• Decision Date: 12 May 1896
• Docket Number: 369.
• Parties: MT. ADAMS & E.P. INCLINED RY. CO. v. LOWERY.

74 F. 463

MT. ADAMS & E.P. INCLINED RY. CO. v. LOWERY.

No. 369.

United States Court of Appeals, Sixth Circuit.

May 12, 1896

This is an action for injuries to a passenger on a cable street car in the city of Cincinnati. The defendant in error, Joseph A Lowery, was injured by riding on the front seat of an open grip car, by reason of a collision between a car going north on Gilbert avenue and a large ice wagon going south. The wagon belonged to the Cincinnati Ice Company, and his action for damages was brought against both the car company and the ice company, alleging negligence upon the part of both. During the course of the trial, it appeared that the driver of the ice wagon was out upon a private expedition of his own, whereupon the court, being of opinion that the ice company was not responsible for the negligence of the driver under such circumstances, directed a verdict in its favor. The case then proceeded against the railway company as sole defendant, and resulted in a verdict for the plaintiff for $7,500.

W. W Ramsay and Robert Ramsay, for plaintiff in error.

Chas W. Baker, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, J.

LURTON Circuit Judge, after making the foregoing statement of facts, .

There are five errors assigned to the action of the court below. The first is as follows:

'The court erred in sustaining the objection of the defendant the Cincinnati Ice Company to the following question asked the witness Annie Redman: 'Q. From the time you saw those horses turn, until the collision, how long was it? Wasn't it about a second or two?"

There were two defendants, the ice company and the street-railway company, and each was represented by its own counsel. Each was interest in showing that the fault, if any, was the fault of the other, or in showing mutual negligence, so that the judgment, if any, would be joint. The question was a leading one, propounded by counsel for the railway company upon cross-examination of a witness who had been examined by the plaintiff. The question was objected to by the ice company. Where there are two defendants, each making separate defenses, or where each is endeavoring to cast the fault upon the other, it is not error if the trial judge, in the exercise of his discretion, shall disallow leading questions propounded by one defendant, when objected to by the other. Sanger v. Flow, 4 U.S.App. 32, 1 C.C.A. 56, and 48 F. 152.

The second error assigned is that it was error in the court to refuse to direct a verdict for the defendant at the close of the plaintiff's evidence. This is a bad assignment. The defendant thereafter introduced evidence, and waived thereby all right to assign error upon this action of the court.

The fifth error assigned can best be considered at this point. It is that the court erred in refusing to direct a verdict for the defendant at the close of all the evidence. In support of this motion the entire facts of the case have been elaborately argued. Under the repeated rulings of this court, as well as of the supreme court, it must be regarded as well settled that upon a writ of error no question can be raised as to whether the verdict was against the weight of the evidence. That was a question for the sole determination of the trial judge upon the motion for a new trial. His action in refusing a new trial upon that ground cannot be assigned as error. The motion for a peremptory direction at the close of all the evidence was based upon the supposed insufficiency of the evidence, in point of law, to establish any negligence against the street-railway company. What possible care and skill did that company fail to use, which, if they had used, the collision might have been avoided? In the solution of this question we are not to weigh the evidence, nor to determine the value of conflicting evidence. The question, when a motion to direct a verdict is made, is this: Is there any material and substantial evidence, which, if credited by the jury, would in law justify a verdict in favor of the other party? If there was, it cannot be held error that the trial judge declined to direct the verdict, and submitted the value of that evidence to the consideration of the jury. The duty of a trial judge under such circumstances was much considered in Railway Co. v. Slattery, 3 App.Cas. 1155, where, though the court was divided in opinion as to the result, there was great unanimity of judgment as to the proper rule where there is any substantial conflict of evidence. In that case it was held, after great deliberation (no less than eight of the law lords delivering separate opinions), that 'where there is conflicting evidence on a question of fact, whatever may be the opinion of the judge who tries the cause as to the value of that evidence, he must leave the consideration of it for the decision of the jury. ' In that case the question on appeal was not whether the verdict was against the evidence, but whether the trial judge should have directed a verdict. The negligence of the railroad company turned upon the question as to whether the whistle of the engine had been sounded at a place where it should have been. Three witnesses said it had not been sounded. Ten others said it had. Lord Cairns, as to this, and as to the duty of an appellate tribunal, said:

'There is thus opposed to the evidence of two persons who say they did not hear (which may mean that they did not observe) the whistle, and of one who says he did not hear it, but will not swear that it did not take place, a body of witnesses, ten in number, including every person whose evidence could be supposed to be material, all of whom seem to me to be entirely unimpeached and unimpeachable, who state in the most positive way that the whistling did take place. My lords, I have already said that your lordships have not now before you the question of whether the verdict was against evidence or against the wright of evidence. But I feel bound to say that, if that question were now open, I should, without hesitation, be of opinion that a verdict more directly against evidence I have seldom seen. It is stated that the learned judge before whom the case was tried was not dissatisfied with the verdict. I can only express to my surprise that this should have been the case. As it is, it appears to me that the jury, actuated perhaps by feelings of compassion for a plaintiff who is no doubt much to be pitied, and willing to gratify those feelings at the expense of the appellants, have found the first issue, that of negligence on the part of the appellants, for the respondent, when it ought to have been found for the appellants. This, however, as I have already said, is not a reason for entering the verdict for the defendant. It is only a ground for a new trial.'

Lord Hatherley, in the same case, said:

'I will, in the first place, state my concurrence with Mr. Justice Barry's opinion in the court below (1) viz. 'When once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury.''

In Greenleaf v. Birth, 9 Pet. 292-298, the rule was thus stated:

'Where there is no evidence tending to prove a particular fact, the court are bound to so instruct the jury, when requested, but they cannot lawfully give any instruction which shall take from the jury the right of weighing the evidence and determining what effect is shall have.'

In U.S. v. Laub, 12 Pet. 1-3, it was said:

'It is a point too well settled to be now drawn in question that the effect and sufficiency of the evidence are for the consideration and determination of the jury; and the error is to be redressed, if at all, by application to the court below for a new trial, and cannot be made a ground of objection on a writ of error.'

In Insurance Co. v. Doster, 106 U.S. 30-32, 1 Sup.Ct. 18. Mr. Justice Harlan said:

'The motion, at the close of the plaintiff's evidence, for a peremptory instruction for the company, was properly denied. It could not have been allowed without usurpation upon the part of the court of the functions of the jury. Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper directions as to the principles of law involved. It should never be withdrawn from them 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 returned in opposition to it.'

In Railroad Co. v. Cox, 145 U.S. 593-606, 12 Sup.Ct. 905, Chief Justice Fuller said:

'The case should not have been withdrawn from the jury unless the conclusion followed, as a matter of law, that no recovery could be had upon any view which could be properly taken of the facts the evidence tended to establish.'

Neither is the question as to whether there is such a conflict as should be submitted to the jury determined by the mere fact that there is some evidence tending to support the case of the party having the onus of proof. There must be something more than a bare scintilla. It may be that no certain standard can be set up by which a court may draw the line between evidence of so slight and vague a character as to amount to a mere scintilla, and evidence legally sufficient to entitle the party offering it, if uncontradicted, to a verdict. The 'scintilla rule,' so called, is not recognized by the supreme court, nor by the English courts. In these courts it is well settled that there is always a preliminary question for the court. That question is whether or not the party having the onus has produced evidence upon which the jury might reasonably...