Norfolk & W. Ry. Co. v. Gardner

• Decision Date: 09 May 1908
• Docket Number: 784.
• Citation: 162 F. 114
• Parties: NORFOLK & W. RY. CO. v. GARDNER, Sheriff.
• Court: U.S. Court of Appeals — Fourth Circuit

162 F. 114

NORFOLK & W. RY. CO. v. GARDNER, Sheriff.

No. 784.

United States Court of Appeals, Fourth Circuit.

May 9, 1908

Cleon Moore and Marshall McCormick (Theodore W. Reath, on brief) for plaintiff in error.

M. J Fulton and D. C. O'Flaherty (Joseph W. Cox and F. L Bushong, on brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and PURNELL and WADDILL, District judges.

PURNELL District Judge.

On the 15th day of March, 1907, appellee commenced his action by the issuance of a writ of summons from the circuit court of Jefferson county, W. Va., for damages in the sum of $10,000 and at March rules filed a declaration. This suit or action was duly removed to the Circuit Court of the United States for the Northern District of West Virginia and tried therein. There was a motion to remand, which motion was overruled, and the cause tried before a jury, and verdict in favor of the plaintiff for the sum of $5,000. A motion in arrest of judgment and motion for new trial were made by defendant below, appellee here. The court overruled these motions and entered judgment in favor of the plaintiff, and defendant appealed, assigning the following errors:

'(1) The verdict is contrary to the law and the evidence. (2) Because of the errors happening on, in, and by the rulings of the court during the progress of the case. (3) Because of the misdirection of the court in the instructions given by it to the plaintiff. (4) Because of the refusal of the court to instruct the jury on behalf of the defendant in the form in which the instructions were presented to the court, and also because of its amendments, alteration, and modification of certain of the instructions asked for by the defendant, and particularly because of its refusal to give instruction 5, to the effect that if the giving of the clearance card by Scott, the local operator, to Hendrickson, the engineman, was the proximate cause of the injury, the plaintiff could not recover. (5) Because of the refusal of the court on the motion of the defendant to direct a verdict in favor of the defendant company. (6) There are other matters apparent upon the face of the record which the defendant company relies upon in support of its motion to set aside the verdict of the jury and in arrest of judgment.'

The several motions aforesaid, including one made in apt time to direct a verdict in favor of the defendant, were overruled by the court, to which action on the part of the court defendant excepted and tendered 13 bills of exception, numbered from 1 to 13, consecutively, which bills of exception were allowed, signed, sealed, and made a part of the record, and defendant sued out this writ of error.

The court might dispose of this case under its rules, if strictly enforced, without passing upon the merits of the controversy. These rules are reasonable, plainly stated, and must be followed by counsel bringing causes to this court by appeal or writ of error. They are made for this purpose and with this view, and must be enforced. 'Rule 11, Assignment of Error' (150 F. xxvii, 79 C.C.A. xxvii), provides:

'The plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of error shall have been filed. When the error alleged is to the admission or rejection of evidence the assignment of error shall quote the full substance of the evidence rejected or admitted. When the error alleged is to the charge of the court the assignment of errors shall set out the part referred to totidem verbis whether it be to instructions given or instructions refused. Such assignment of errors shall form part of the record and be printed with it. When this is not done, counsel will not be heard except at the request of the court; and errors not assigned according to this rule will be disregarded, but the court at its option may notice a plain error not assigned.'

Assignments 2, 3, and 6 are not in conformity with this rule, and may be disregarded; but, notwithstanding these imperfections, we have carefully considered the same and are of opinion that they are without merit.

The fifth assignment of error is based on a misconception of the law. The presiding judge in a United States court may direct a verdict when...