Samuel v. George Weidemann Co.

• Decision Date: 15 February 1924
• Docket Number: 3900.
• Citation: 295 F. 314
• Parties: SAMUEL et al. v. GEORGE WEIDEMANN CO.
• Court: U.S. Court of Appeals — Sixth Circuit

295 F. 314

SAMUEL et al. v. GEORGE WEIDEMANN CO.

No. 3900.

United States Court of Appeals, Sixth Circuit.

February 15, 1924

H. G Hightower, of Cincinnati, Ohio, for plaintiffs in error.

Howard M. Benton, of Newport, Ky., for defendant in error.

Before DONAHUE and MACK, Circuit Judges, and ROSS, District Judge.

DONAHUE Circuit Judge.

Webb Samuel, an infant, brought action by his next friend against the George Weidemann Company, a corporation, to recover damages for personal injuries alleged to have been caused by the negligence of defendant's agents and employes. Mollie Samuel, the mother of Webb Samuel, also brought an action against the same defendant, based upon the same allegations of negligence, to recover damages for loss of services of her son, for nursing him in his sickness, and for money expended for hospital and medical services.

The defendant, for answer to these petitions, denied all negligence on its part, and further averred that whatever injuries were suffered by Webb Samuel were occasioned by his own carelessness and contributory negligence, while he was riding without permission or knowledge of the defendant, his agents or employes, on the defendant's delivery truck. These actions were consolidated.

The jury upon the first trial returned a verdict in favor of each plaintiff. The trial court, being of the opinion that the verdicts were against the weight of the evidence sustained the motion of the defendant to set aside these verdicts and granted a new trial. Upon the second trial it was stipulated by counsel that:

'After the jury shall have been duly impaneled and sworn according to law, the record of the testimony given at the first trial shall be offered as all the testimony on behalf of the plaintiffs and defendant at the second trial, and the same shall be taken and considered in all respects as though the witnesses testifying at the first trial had been recalled and testified in the second trial.'

After the introduction of this evidence in pursuance of this stipulation, the trial court directed the jury to return a verdict for the defendant.

At the time of the accident Webb Samuel was between 11 and 12 years of age. He testified in substance that he was walking from his home in Latonia, Ky., to the hardware store, to purchase some nails; that he was in a hurry; that he saw the truck of the defendant standing against the curb in front of Fred Graf's place of business; that he saw no one standing about the truck, and climbed upon the fender over the rear wheel; that while he was standing on this fender two men came out of Graf's saloon, and, without saying anything to him whatever, got on the front part of the truck and started it in motion; that he was then standing on the fender of the rear wheel on the side of the truck next to the curb; that when the truck moved it slipped over in the gutter, and kept on going, and caught and crushed him between the telephone pole and the truck.

The testimony of this plaintiff as to where he had located himself upon this truck is materially weakened by the evidence of Rose Ella Dressman, a witness called on behalf of plaintiffs, who testified that she came out of her house and saw Webb Samuel sitting on the back end of the truck; that at the same time she saw two men come out of the Graf saloon get on the truck, and start it. While her testimony does corroborate the testimony of Webb Samuel in reference to...