Parks v. Southern Ry. Co.

• Decision Date: 07 February 1906
• Docket Number: 627.
• Citation: 143 F. 276
• Parties: PARKS v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F. 276

PARKS v. SOUTHERN RY. CO.

No. 627.

United States Court of Appeals, Fourth Circuit.

February 7, 1906

Plaintiff's intestate was a flagman employed by defendant railroad company which was changing the grade of its road, and he had been working continuously for three days without rest or sleep. About noon of the third day he was sent down the track to flag a train, and was killed, as the evidence in an action to recover for his death tended to show, by the train which he was to flag. A witness testified that some time before the arrival of the train he passed deceased, who was then lying on the outside of the ties and appeared to be drowsy, but he "raised up" and spoke to the witness. There was no direct evidence as to the manner of the accident. It was shown that the track in the direction from which the train approached was level, straight, and unobstructed for a distance of 500 yards from the place, and that the train could have been stopped in about 200 yards. Held, that such evidence was insufficient to establish negligence on the part of defendant, and that the court properly directed a verdict in its favor.

J. W Keerans (I. T. Avery, W. L. Pearson, and Osborne, Maxwell &amp Keerans, on the brief), for plaintiff in error.

L. C Caldwell (A. H. Price and G. F. Baston, on the brief), for defendant in error.

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

PRITCHARD Circuit Judge.

This is an action by plaintiff in error to recover damages for the alleged negligent killing of the intestate, S. Arthur Parks. The intestate was a flagman in the employment of Oliver & Co., who were engaged in changing and reducing the grade of the Western North Carolina Railroad then owned and operated by the defendant, the Southern Railway Company. The intestate had worked from Monday afternoon until Thursday afternoon constantly, without sleep, and was very much in need of rest. On November 22, 1901, about 12 o'clock, he was sent to flag train known as No. 11. When last seen alive, he was on the outside of the track, with his right arm under his head resting on a cross-tie. The witness Garrison, who last saw the deceased alive, said 'he was laying down on the track with his right arm under his head on the outside on the ties. ' He said that he called to him and 'he raised up and spoke; he looked like he was tired and sleepy. ' This was only a short time before the intestate was killed. Garrison testified that he had walked about 600 or 700 yards before passenger train No. 11, which killed the intestate, passed him. The track for about 500 yards in the direction in which train No. 11 was approaching was straight, level, and without any obstructions whatever. It was shown that a train of about the same number of cars and running at about the same rate of speed had been frequently stopped within a distance of about 200 yards near where the intestate was killed.

It is insisted by the plaintiff in error that the court below erred, first, in refusing to permit the plaintiff in error to take a nonsuit after all the plaintiff's evidence had been introduced, and after the defendant had made a motion to instruct a verdict in his behalf, and the court upon argument of such motion had passed thereon favorably to the defendant; and, secondly, in directing the jury to find a verdict in favor of the defendant in error. We think that under the circumstances it was within the discretion of the court to either permit the plaintiff to take a nonsuit or to direct a verdict in favor of the defendant in error. In the case of Randall v. Baltimore & Ohio R.R. Co., 109 U.S. 482, 3 Sup.Ct. 324, 27 L.Ed. 1003, Mr. Justice Gray, who , among other things said:

'It is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. ' Pleasants v. Fant, 22 Wall. 116, 22 L.Ed. 780; Griggs v. Houston, 104 U.S. 453, 26 L.Ed. 840; Herbert v. Butler, 97 U.S. 319, 24 L.Ed. 958; Bowditch v. Boston, 101 U.S. 16, 25 L.Ed. 980.

The court may in such cases direct a verdict and it necessarily follows that in the exercise of a sound discretion it has the power to deny a motion for nonsuit and direct a verdict in favor of the defendant.

In the case of Huntt v. McNamee (decided at the last term of this court) 141 F. 293 Judge Goff, in discussing the question, laid down the law in a clear and forceful manner as follows:

' * * * The courts of the United States have always exercised the right to control the disposition of causes pending before them, when either the allegations of the plaintiff or the evidence introduced in support thereof has failed to make out a case. Merchants' Bank v. State Bank, 10 Wall. 604, 19 L.Ed. 1008; Pleasants v. Fant, 22 Wall. 116, 22 L.Ed. 780. For a number of years the Supreme Court of the United States declined to entertain writs of error upon nonsuits. That court has held that the Circuit Courts of the United States have no authority to order a nonsuit in invitum. Elmore v. Grymes, 1 Pet. 468, 471, 7 L.Ed. 224; Crane v. Morris, 6 Pet. 597, 8 L.Ed. 514; Castle et al. v. Bullard, 23 How. 172, 183, 16 L.Ed. 424; Schuchardt v. Allens, 1 Wall. 359, 370, 17 L.Ed. 642; Coughran v. Bigelow, 164 U.S. 301, 307, 17 Sup.Ct. 117, 41 L.Ed. 442. Where the record disclosed that the plaintiff had voluntarily become nonsuited, a writ of error was refused him. Evans v. Phillips, 4 Wheat. 73, 4 L.Ed. 516; Cossar v. Read, 17 Q.B. 540; Central Trns. Co. v. Pullman's Car Co., 139 U.S. 24, 39, 11 Sup.Ct. 478, 35 L.Ed. 55. These cases cited are instructive as they relate to the questions involved in the assignments of error pertaining to the request for a nonsuit.

'While the general rule is as above indicated, still the Supreme Court has by means of exceptations taken during the trial, in states where statutes authorized nonsuits, passed upon the questions here involved, and has discussed the matter of ordering a nonsuit. Mr. Justice Field, in the case of Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539, says, in substance, that the difference between a motion to direct a nonsuit and a motion to direct a verdict for defendant is rather a matter of form than of substance, except that the latter ends litigation if a new trial be not granted. The rule is undoubtedly well established that it is within the authority of the presiding judge to direct a verdict, and to enter judgment thereon. The court below, having no doubt that the plaintiff had failed to make out a case, properly gave the directions it did. It would have been a waste of time to have permitted the case to proceed further, if the result was as the court indicated an inevitable one. In Pleasants v. Fant, supra, Mr. Justice Miller said: ' Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that if the jury should find a verdict in favor of the plaintiff that verdict could be set aside and a new trial had? Such a proposition is absurd, and accordingly we hold the true principle to be that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury.' * * * Even if it be admitted that the plaintiff below had the right to demand a nonsuit during the progress of his cause (it is at least questionable after a trial has begun, see Johnson v. Bailey et al. (C.C.) 59 F. 670), certainly it must also be admitted that such right must be reasonably exercised. A nonsuit cannot be demanded after a full adjudication. In this case the defendant had submitted his motion that the jury be instructed to find for him. This motion, similar to a demurrer to the evidence, presented a question of law for the court to decide. Louisville, etc., R.R. Co. v. Woodson, 134 U.S. 614, 621, 10 Sup.Ct. 628, 33 L.Ed. 1032. The court, in deciding said motion, reached the conclusion that the plaintiff could not recover because the allegations of his complaint would not support a verdict. This judgment of the court disposed of the controversy, and it was only after such disposition that the plaintiff asked for a nonsuit. The trial judge, also, in

...