Railroad Company v. Pollard

• Citation: 89 U.S. 341,22 L.Ed. 877,22 Wall. 341
• Parties: RAILROAD COMPANY v. POLLARD
• Decision Date: 01 October 1874
• Court: United States Supreme Court

89 U.S. 341

22 L.Ed. 877

22 Wall. 341

RAILROAD COMPANY v. POLLARD.

October Term, 1874

ERROR to the Circuit Court for the District of New Jersey; the case being thus:

By the practice in the courts of New Jersey, after a plaintiff rests his case, the defendant may move for a nonsuit; and if the court refuses to grant one, a bill of exceptions may be asked for, and on writ of error brought, the plaintiff in error may assign for error the refusal to grant the nonsuit.

By an act of Congress, approved June 1st, 1872,¹ it is enacted,

'That the practice . . . and forms, and modes of proceeding, &c., in the Circuit . . . Courts of the United States shall conform as near as may be to the practice . . . and forms and modes of proceeding existing at the time in like cases, in the courts of record of the State within which such Circuit . . . Courts are held.'

In this state of the law, in June, 1871, Mrs. Pollard, a resident of Chicago, had taken passage by railroad, on a connecting line of roads, one of which was owned by the New Jersey Railroad Company (the defendant in this case), for herself, her two sisters, and her own daughter, a child of about thirteen years old, from Chicago vi a Philadelphia to New York; the purpose of the journey being refreshment in the summer and general improvement to health. The travelling party were in a Pullman palace car, and occupied what is known as a 'section' of it. This section was near the middle of the last car of the train where it was used for travelling and not for sleeping. It had two double seats, one at each end of the section, facing each other, so that persons who occupied the seat nearest the forward part of the car had to ride with their backs to the engine.

On the arrival of the party at Philadelphia, the train was composed of five passenger cars and a baggage car. But it being now the season of fruit, five fruit cars were added to the train before setting off for New York; these being put on to it between the locomotive and the passenger train. The train thus made up had in it eleven cars. Some freight cars were added afterwards.

Continuing their journey towards New York by night, when the train came within about thirty miles of the last-named city, or rather of Jersey City just opposite to it—it being now half-past five o'clock in the morning—the servant in charge of the Pullman cars aroused the passengers in them, informing them that they were reaching the end of their journey. Mrs. Pollard got up, and having with no unreasonable delay as it seemed dressed herself and her child, began to arrange the child's hair, brushing and plaiting it. She was standing in the section which her travelling party had occupied, with her back to the seat in which she had been sitting, and so looking towards the rear of the cars, the child standing before her. During this operation of arranging the child's hair, and when within about one hundred yards of the depot at Jersey City, the whole train was switched off upon a siding. The four passenger cars and the baggage car were detached or uncoupled from the fruit and freight cars, were attached by the drill-master to his engine, taken back over the same road beyond the switch, which was then adjusted to allow the cars to enter the passenger depot, and were then backed into the usual landing-place for the passengers. In this operation and just as the train was about to stop—the cars moving very slowly, so much so that some passengers at the moment were getting out of them on to the platform—one car bumped against another with a certain degree of force, and Mrs. Pollard was in some way thrown against the arm of the seat in which she had been sitting, striking, as testimony tended to prove must have been the case, the lower part of her spinal cord; a part of it which, as is known to medical men and surgeons, is very susceptible to anything like a blow, and which,—especially in case of women,—it is dangerous to fall upon. Mrs. Pollard was rendered quite unconscious by the blow, and the train being now completely stopped, she was carried by four men into a hotel near the station, where medical aid was soon obtained. Having been finally conveyed to her home in Chicago, it was soon found that the whole region about the lower part of the lumbar vertebrae and the sacrum was much injured, and that partial paralysis of the lower limbs was supervening. This went on, and power of locomotion, of course, was ultimately much impaired. Mrs. Pollard accordingly brought suit—the suit below—against the New Jersey Railroad Company, on whose road the accident occurred.

On the trial the conductor of the car testified that Mrs. Pollard 'told the doctor at Jersey City that she had a weak back;' and the porter of the car testified, that at the same place he 'heard her tell one of her sisters who had been travelling with her that she was sorry for the accident, because she was on her way for health; that her back had never been strong.' These statements, however, were denied by Mrs. Pollard and the sister.

There was testimony offered by the railroad company which tended to show that on all their cars they used the best sort of 'buffers' to deaden the concussions which are unavoidably incident to stopping a train of cars; that the bumping in this case was not greater than what is usual in coming to a stand in the station-house; and that by some persons it had not been even observed.

On the other hand, testimony was given to show that the company did not use the buffers known as Miller's, which the plaintiff alleged was the best sort to deaden the concussion, and testimony tending to show also that in the present case the jar had been unusual and violent.

One of the witnesses by whom the plaintiff's case was sought to be made out was herself. She had been examined de bene esse in Chicago and her evidence, thus given, was read on the trial of the case at Trenton, New Jersey, she being at the time in Chicago, Illinois, and unable to travel.

This deposition was offered and received in pursuance of section 858 of the Revised Statutes of the United States, which enact as follows:

'In the courts of the United States, no witness shall be excluded in . . . any civil action because he is a party to or interested in the issue tried.'

The same section, after excepting the cases of actions by or against executors, administrators, or guardians, continues:

'In all other respects, the laws of the State in which the court is held, shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty.'

The reading of the deposition was opposed by the defendants, on the ground that it was not lawful, either by the acts of Congress or by the acts of the legislature of New Jersey, to use in evidence the deposition of a party, and because, as the defendants insisted, the testimony of the plaintiff, she being a party to the cause, could only be taken in the presence of the court and jury.

On its admission by the court, an exception was accordingly sealed.

The plaintiff having rested her case the defendant moved for a nonsuit, on the ground that there was such contributory negligence on the part of Mrs. Pollard, as shown by her standing in the car, her position and occupation at the time of the accident, as would prevent a recovery; and that there was no such negligence shown on the part of the defendant as would warrant the case to be submitted to a jury. The court refused a nonsuit.

This refusal was the subject of another exception.

The evidence being concluded, the plaintiff's counsel requested the court to charge——- 'That while the plaintiff was bound to satisfy the jury that the injury was caused by the negligence of the defendants, if from the evidence the jury were satisfied that the injury was occasioned while Mrs. Pollard was a passenger on defendants' road, and that she was in the exercise of ordinary care, namely, that degree of care which may be reasonably expected from a person in her situation, this would be prim a facie or presumptive evidence of the defendants' liability; and that the plaintiff would not be required to show by what particular acts of misconduct or negligence on the part of the defendants the injury was occasioned.'

The court charged that the law, as decided by this court in Stokes v. Saltonstall, reported in 13th Peters,² was in accordance with what the request thus made assumed it to be. But told the jury also, to be careful not to consider any presumption against the defendant, until they were satisfied by affirmative proof on the part of the plaintiff that Mrs. Pollard was in the exercise of reasonable care and caution when the injury was sustained.

The defendants' counsel asked the court to charge——

'1st. That the facts of the case were not of that character which would warrant on the part of the jury an inference that the defendants were guilty of a want of care and skill; and that the jury must look to affirmative proof of want of care and skill in coming to a verdict.

'2d. That the facts were not such as to warrant the conclusion that there was...