Robinson v. Denver City Tramway Co.

• Decision Date: 05 September 1908
• Docket Number: 2,601.
• Citation: 164 F. 174
• Parties: ROBINSON et al. v. DENVER CITY TRAMWAY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

164 F. 174

ROBINSON et al. v. DENVER CITY TRAMWAY CO.

No. 2,601.

United States Court of Appeals, Eighth Circuit.

September 5, 1908

Syllabus by the Court

In an action against an employer, where the sole charge is that an employe was negligent on a particular occasion, it is irrelevant to prove that he, or some other employe, had been negligent on other occasions.

A municipal ordinance is not a public statute, but a mere municipal regulation, and to make it available in establishing a charge of negligence it must be pleaded, like any other fact of which judicial notice will not be taken.

Whilst questions of fact may not be retried on a writ of error errors in the charge to the jury may be disregarded, if, upon all the evidence properly admitted, a verdict in favor of the unsuccessful party could not lawfully be sustained, and there be no erroneous exclusion of evidence offered by him.

When the evidence is undisputed, or is so clearly preponderant that the court, in the exercise of a sound judicial discretion, could give effect to but one verdict, the case may, and should, be withdrawn from the jury, and their verdict directed.

Sterling B. Toney (Henry V. Johnson and R. Burge Toney, on the brief) for plaintiffs in error.

Howard S. Robertson (Charles J. Hughes, Jr., and Gerald Hughes, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

VAN DEVANTER, Circuit Judge.

Mary A Robinson, a passenger upon a street car, sustained fatal injuries when alighting or preparing to alight therefrom while it was in motion, and her heirs brought an action against the street car company to recover for her death, alleging that it was caused by the negligence of the company's servants. The injuries were sustained in the city of Denver, at the intersection of Twelfth avenue and Steele streets, where the company maintains a Y upon which to turn its cars; that being the end of one of its lines of railway. The main track is in Twelfth avenue, and the Y is in Steele street. Outbound cars, on reaching the Y, pass around its first arm to a stopping place on its stem, and then move backward around the second arm to another stopping place on the main track. In that way they are completely turned preparatory to making the return trip across Steele street and along Twelfth avenue. The two stopping places are a little more than 100 feet apart, and passengers are permitted to leave and enter at both. The cars have an inclosed section and an open one; the former being in front. At the side of the open section, near the middle of the car, is an open doorway, with a step or footboard below it, and in the center of the doorway is an upright post or bar, which passengers can grasp to assist themselves in entering and leaving. Mrs. Robinson was in the inclosed section of an outbound car which reached Steele street in the evening shortly after it became dark. The car passed around the first arm of the Y and stopped on the stem for a brief interval, as it had to do, so that the switch might be thrown and the movement of the car reversed. It then moved backward around the second arm of the Y, and as it passed the middle of the curve Mrs. Robinson fell to the ground in front of the doorway in the side of the open section. One of her legs passed under the car and was crushed by the wheels; death resulting therefrom in a few days. Before the stop on the stem of the Y she gave no signal and made no request indicative of a purpose to leave the car at that place. She had used that car line many times before, had entered and left the cars at both stopping places, was familiar with the surroundings, was of mature years and in full possession of her faculties, and was carrying nothing more cumbersome than a small hand bag.

Thus far the facts were conceded, and so the controlling question was: How did she come to fall at the side of the moving car as it passed around the curve in the second arm of the Y? The complaint charged that when the car stopped on the stem of the Y she arose from her seat in the inclosed section and advanced to the open section, intending to alight therefrom; that as she stepped into the open section the car suddenly moved backward toward the other end of the second arm; that she took hold of the upright post or bar at the doorway in the side of the car; and that, while she was holding to this post or bar and 'waiting for the car to stop' at the other stopping place, which 'was but a few yards' away, the motorman or conductor 'carelessly, recklessly, and negligently backed' the car around the curve 'at such a reckless, violent, and rapid rate ' as to break her hold on the upright post or bar, 'and threw her' through the open doorway 'with great violence.' The answer denied what was so charged, and alleged that her injuries were due to contributory negligence on her part, without which they would not have been sustained. The issues so presented, with such evidence as was admitted in that connection, were submitted to the jury, and they returned a verdict for the defendant, which the court declined to disturb on a motion for a new trial.

A reversal of the judgment is now sought because of rulings whereby evidence was excluded, and because of alleged errors in the charge to the jury. As some of the former were not excepted to, they must be held to have been acquiesced in. Newport News, etc., Co. v. Pace, 158 U.S. 36, 15 Sup.Ct. 743, 39 L.Ed. 887; Stewart v. Wyoming Ranch Co., 128 U.S. 383, 390, 9 Sup.Ct. 101, 32 L.Ed. 439; Rodriguez v. United States, 198 U.S. 156, 165, 25 Sup.Ct. 617, 49 L.Ed. 994.

One ruling to which an exception was reserved was the rejection of an offer to prove by a woman living in that locality that on other occasions she had seen cars move around the same curve 'at a very rapid rate.' The ruling was right. The offer fell within the rule that in an action against an employer, where the sole charge is that an employe was negligent on a particular occasion, it is irrelevant to prove that he, or some other employe, had been negligent on other occasions. 1 Wharton Ev. (3d Ed.) Sec. 40; Maguire v. Middlesex R. Co., 115 Mass. 239; Harriman v. Pullman Palace Car Co., 29 C.C.A. 194, 85 F. 353; Delaware, etc., Co. v. Converse, 139 U.S. 469, 476, 11 Sup.Ct. 569, 35 L.Ed. 213; Louisville, etc., Co. v. McClish, 53 C.C.A. 60, 68, 115 F. 268, 276; Pueblo Building Co. v. Klein, 5 Colo.App. 348, 38 P. 608.

Another ruling to which an exception was taken was the exclusion of a purported ordinance of the city laying certain duties upon the defendant which it was said were violated on this occasion. This ruling was also right. An ordinance is not a public statute, but a mere municipal regulation; and, to make it available in establishing a charge of negligence, it must be pleaded, like any other fact of which judicial notice will not be taken. Here it was not pleaded, and so could not be proven. City of Greeley v. Hamman, 12 Colo. 94, 96, 20 P. 1; Weiss-Chapman Drug Co. v. People, 39 Colo. 374, 378, 89 P. 778; Fay v. City of Ft. Collins, 40 Colo. 262, 90 P. 512; Garlich v. Northern Pac. Ry. Co., 67 C.C.A. 237, 131 F. 837; Horn v. Chicago, etc., Co., 38 Wis. 463; Watt v. Jones, 60 Kan. 201, 56 P. 16; Austin v. Walton, 68 Tex. 507, 5 S.W. 70; Illinois Cent. R. Co. v. Ashline, 171 Ill. 313, 49 N.E. 521; Gardner v. Detroit St. Ry. Co., 99 Mich. 182, 58 N.W. 49; 4 Elliott on Railroads (2d Ed.) Sec. 1698; 6 Thompson on Negligence (2d Ed.) Sec. 7470; 28 Cyc. 393. And it may be observed in passing that the terms of the ordinance were such that its application to the case was at least very questionable.

The objections to portions of the charge to the jury are earnestly and forcefully pressed upon us, but it will not be necessary to consider them, if, as is contended by the defendant, the verdict was right as matter of law; for, whilst we may not retry the questions of fact, we may disregard any errors in the charge, there being no erroneous exclusion of evidence offered by the plaintiffs, if, upon all the evidence properly admitted, a verdict in their favor could not lawfully have been sustained. In such cases we but apply the familiar rule that errors which could not have prejudiced the unsuccessful party give no right to a reversal. Cook v. Foley, 81 C.C.A. 237, 152 F. 41; AEtna Indemnity Co. v. Coal Co., 83 C.C.A. 431, 154 F. 545; Brobst v. Brock, 10 Wall. 519, 18 L.Ed. 387; McLemore v. Louisiana State Bank, 91 U.S. 27, 23 L.Ed. 196; West v. Cambden, 135 U.S. 507, 10 Sup.Ct. 838, 34 L.Ed. 254.

We turn, then, to the evidence to ascertain whether that bearing on the issues of fact before stated, particularly the alleged actionable negligence of the defendant, was such that a verdict for the plaintiffs could not lawfully have been sustained; or, putting it in another way, whether the evidence which made against the plaintiffs was undisputed, or so clearly preponderant that the Circuit Court, in the exercise of a sound judicial discretion, should have withdrawn the case from the jury and directed a verdict for the defendant. If so, that court rightly declined to disturb the verdict...