Page v. United Fruit Co., 1771.

• Decision Date: 09 March 1925
• Docket Number: No. 1771.,1771.
• Citation: 3 F.2d 747
• Parties: PAGE et al. v. UNITED FRUIT CO. et al.
• Court: U.S. Court of Appeals — First Circuit

3 F.2d 747 (1925)

PAGE et al. v. UNITED FRUIT CO. et al.

No. 1771.

Circuit Court of Appeals, First Circuit.

January 6, 1925.

On Petition for Rehearing, March 9, 1925.

Charles F. Perkins, of Boston, Mass. (Paul F. Perkins, of Boston, Mass., on the brief), for plaintiffs in error.

Robert G. Dodge, of Boston, Mass. (J. M. Raymond, of Boston, Mass., on the brief), for defendants in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

This was an action of tort brought by Michael B. Ryan, a citizen of Connecticut, against the Northern Railway Company and the United Fruit Company, New Jersey corporations having their usual places of business at Boston, Mass., to recover damages for injuries sustained while a passenger on the Northern Railway Company's road in Costa Rica, Central America. The writ was dated January 15, 1921. The action was brought in the federal District Court for Massachusetts.

There were two trials in the District Court. At the first trial a verdict was directed for the United Fruit Company, and the jury disagreed as to the railway company. At the second trial, in answer to questions submitted by the court, the jury found specially (1) that the plaintiff was injured by the negligence of the defendant; and (2) that the plaintiff's damages were $35,000, less $10,000 which had been paid him by the Costa Rican government, and returned a general verdict for the plaintiff for $25,000. At the same time, at the direction of the court, they found for the defendant, if, as a matter of law, the plaintiff was not entitled to a verdict, and consented that a verdict might be entered on an order of the District Court for Massachusetts, or of the Circuit Court of Appeals, or of the Supreme Court, with the same effect as if returned by them.

On May 5, and within two days of the rendition of the verdict, the defendant filed a motion to set aside the verdict as not warranted in law, and asked that the alternative verdict for the defendant be entered in its place. A hearing having been had on the motion, the District Court, on September 6, 1923, entered an order setting the verdict aside and entering the alternative verdict for the defendant, subject to the plaintiff's exception.

The case was thereafter continued from term to term, when, at the December term, 1923, the death of the plaintiff being suggested and administration having been taken out, the administrators, Donald Page and H. Anton Bock, were made plaintiffs. A substituted bill of exceptions having been filed on March 12, 1924, on March 17, 1924, judgment was entered for the United Fruit Company and the Northern Railway Company, and this writ of error was prosecuted.

The errors relied on relate to the order of the District Court setting aside the verdict for the plaintiff and entering the alternative verdict for the defendant railway company.

The defendants in their answer, in addition to a general denial, pleaded three special defenses: (1) Assumption of risk; (2) that the plaintiff received the sum of $10,000 from the republic of Costa Rica as compensation for the injuries in question and gave a release to the said republic; and (3) that the plaintiff never had a cause of action under the law of the republic of Costa Rica, and, if he ever had, it was prescribed under said law.

The principal question in the case is whether there was any evidence which warranted the jury in finding that the defendant was negligent — that through its representatives charged with the duty of operating its road it failed to use the care of the good father or of the average prudent man; a common carrier of passengers, under the law of Costa Rica, not being responsible for the highest degree of care.

Considering the evidence in the light most favorable to the plaintiff, it tended to show the following: That at 8 o'clock in the morning of February 23, 1918, the plaintiff became a passenger on defendant's regular east-bound train from San Jose to Port Limon, Costa Rica, which was due to arrive at Limon at 4:30 that afternoon, where he intended to take a steamer the next day for New York. That on the day preceding February 23 an insurrection against the government broke out west of San Jose, which the government and railway officials regarded as of a trifling nature. That the train arrived at Turrialba about 11:30 in the forenoon of the 23d, where it was seized by a band of revolutionists and detained there until about 5:45 that afternoon, some of the revolutionists in the meantime having taken the engine and gone back west of Turrialba to destroy the track. That, after the engine was brought back, the passenger train, at about 5:45 p. m., with a number of the revolutionists still on board, proceeded easterly. That the next station reached east of Turrialba and some two or three miles distant therefrom was Torito. That at this point the revolutionists left the passenger train to go back and destroy the Torito bridge and the train proceeded on its way east to Peralta, a distance of three or four miles. That the head offices of the railway company were at Limon, where its general manager, superintendent, and chief assistant train dispatchers were located, and from which point orders were issued for the movement of trains. That there were telephone and telegraph lines connecting the head offices at Limon with the following stations west thereof, to wit: Turrialba; Peralta, a station some seven miles east of Turrialba; La Pascua, five or six miles east of Peralta; Las Lomas, five or six miles east of La Pascua; La Junta, some ten or twelve miles east of Las Lomas; and Siquirres, a short distance east of La Junta. That all the orders directing the movements of trains were made from Limon. That there were no means of communication from one station to another west of Limon. That all communications from such stations had to be to the head offices at Limon, which offices alone could communicate to the stations named west of it; that every station that was provided with lines west of Limon had an operator, except the stations at La Pascua and La Junta, which had booths. That the passenger train arrived at Peralta about 6 o'clock. That at Peralta word was received to pass an extra going west at La Pascua. That the passenger train proceeded east some five or six miles to La Pascua, arriving there at about 7 o'clock, where it went upon a siding, so that the extra might pass, the road being a single track. That the extra coming west proved to be a train bearing government soldiers, sent in pursuit of the insurrectionists, and as the extra bearing the troops passed the passenger train the soldiers shot into the passenger cars and injured the plaintiff.

The conductor in charge of the passenger train was one Ramsey. He testified that while at Turrialba he called the head office at Limon, and informed it that the passenger train had been seized by revolutionists, and read a message prepared by some of the passengers of the train, which they desired telephoned to the American consul at Limon; that the head office declined to receive the message for transmission; that the message requested the consul's assistance in getting the train released from the insurrectionists, so that they might proceed. There was testimony that while the passenger train was held at Turrialba, and before the troop train left Limon, Ramsey notified Limon that the insurrectionists had concluded to release the train and permit it to proceed, but Ramsey did not testify that he gave Limon such information from Turrialba. He did, however, testify that when his train reached Peralta he telephoned Limon that the revolutionists had left the train at Torito and gone back to tear up the Torito bridge.

The head office at Limon, on receiving the information from Turrialba that the passenger train was in the hands of the revolutionists, informed the governor at Limon to that effect, and at 3:30 that afternoon a train was started from Limon bearing government troops bound for Turrialba in search of the insurrectionists.

Chittenden, the defendant's general manager, testified that before the troop train left Limon the trainmen and the commander of the troops were informed that the passenger train at Turrialba was in the hands of the revolutionists; that, when he received word of the release of the passenger train, he communicated that fact to the governor and told him he had better notify the troop train, and that he said he would, and afterwards that he did; that he (Chittenden) did not communicate to the trainmen of the troop train that the passenger train had been released, or that he knew there were women, children, and citizens of other countries among the passengers, but did direct the yardmaster at Siquirres to notify the agent at Las Lomas to inform the trainmen of the troop train that women and children were among the passengers; that the governor had an extension of the United Fruit Company's telephone line in his office, which permitted him to call up Siquirres; and that the troop train, as he remembered, was at that time between Limon and Siquirres. There was also evidence that the troop train left Siquirres at 5:30 and reached Las Lomas about 6 p. m. or a little earlier, and that that place was five or six miles distant from La Pascua, where the trains later met, at the time the accident took place.

The defendant contends that it had no reason to anticipate that the soldiers on the troop train would think that the passenger train contained revolutionists and fire upon it, and that, in any event, it took every reasonable precaution to protect the passengers from such action. But we think the jury might reasonably find on the evidence, particularly in view of the testimony that the trainmen and officers of the troop train, before leaving Limon, were informed that the passenger train was in the hands of the revolutionists at Turrialba, that the defendant had reason to...