Southern Electric Ry. Co. v. Hageman
| Decision Date | 09 March 1903 |
| Docket Number | 1,754. |
| Citation | 121 F. 262 |
| Parties | SOUTHERN ELECTRIC RY. CO. v. HAGEMAN. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Walter H. Saunders and Frederick W. Lehmann (W. F. Boyle and H. S Priest, on the brief), for plaintiff in error.
Seneca N. Taylor (S. C. Taylor and Charles Erd, on the brief), for defendant in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
This is an action to recover damages for personal injuries which Cora Hageman, the plaintiff below, sustained by being thrown from a vehicle in which she was riding, by a street car which belonged to, and was being operated at the time by, the Southern Electric Railway Company, the plaintiff in error. The collision occurred on South Broadway, in the city of St Louis, in the month of November, 1898.
The persons who testified in behalf of the plaintiff at the trial, who witnessed the accident, and were acquainted with the circumstances under which the collision occurred, were the plaintiff herself and her two sisters, who were riding in the vehicle with her. These witnesses concurred in the following statement relative to the affair: That in the early evening of the day in question they were driving north along South Broadway in a one-horse surrey, on the east side of the defendant's street railway tracks, which were laid about in the center of the street; that the plaintiff was acting as driver and sat on the front seat while her two sisters occupied the back seat; that they reached a point in the street where, on the east side of the tracks, it was very muddy for a distance of about 200 feet; that to avoid the mudhole the plaintiff drove upon the east track; that as she did so her two sisters, who were on the lookout, looked back south, in the direction from which a street car might be expected to approach, but saw none until they had driven along the track about 50 or 60 feet, when the headlight of a car that was coming around a curve in the street, some 2 blocks or 900 feet distant from and in the rear of the surrey, was observed; that, anticipating no immediate danger not knowing how fast the car was approaching, they continued to drive along the track a little distance, intending to turn off as soon as they had passed the mudhole; that after they had driven about 75 feet along the track, and the car had approached to within 60 or 75 feet, one of the sisters on the back seat discovered for the first time that the car was approaching very fast-- faster than cars usually run, and at a rate of speed which she estimated to be near 30 miles per hour, whereupon she called to the plaintiff to drive off the track as quick as possible, and at the same time shouted to the motorman to stop, which he failed to do; that the plaintiff, when she was thus directed to turn off the track attempted to do so immediately, but before the vehicle had cleared the track it was struck by the car and overturned; and that in consequence thereof the plaintiff sustained very severe injuries.
The witnesses who were produced by the defendant company, who were present when the collision occurred, were the motorman and the conductor of the car, the latter of whom, however, being on the rear platform did not see the surrey, as he admitted, until it had been overturned. The motorman made the following statement, in substance: That he was returning to the car shed with his car, intending to turn it in for the night; that he had no passengers, and did not stop on that trip to take up any passengers; that he was running his car at the rate of about 7 or 8 miles per hour, as he judged: that he saw the surrey in which the plaintiff and her sisters were riding, when he was about 400 feet distant therefrom; that the surrey was then proceeding north on the west side of the tracks, where the traveling was comparatively good; that as he neared the surrey, and was within 35 or 40 feet from the same, it turned east, and was driven by the persons in charge directly across the track in front of his car, and in the direction of the mudhole, which he admitted to be on the east side of the tracks; that he made every possible effort to stop his car, but failed to do so in time, and that it came into collision with the vehicle in the manner already described.
Two employes of the defendant company, one of them a track laborer and the other a motoneer, testified that shortly after the accident occurred, when the plaintiff and her sisters had been taken to the car sheds of the defendant company, they overheard one of the sisters remark, 'Cora, I told you you could not cross in time;' but both of the plaintiff's sisters denied that they made any such statement, or that they were driving, prior to the accident, on the west side of the street.
It will be observed, therefore, that the evidence of three persons who testified in the plaintiff's behalf tended strongly to establish a case of culpable negligence on the part of the defendant company-- such negligence consisting in running the car in question along a public thoroughfare at an excessive rate of speed, and in the failure of the motorman to take such reasonable precautions to avoid a collision as ought to have been taken after he discovered the presence of the surrey-- while the testimony of a single witness on behalf of the railway company tended to show that the collision was occasioned by an act of inexcusable negligence on the part of the plaintiff herself. Moreover, all of the four eyewitnesses of the occurrence must be esteemed interested witnesses, and no preference can be given to the statements of any of them on the ground that they were disinterested or impartial observers of the accident. The case, therefore, upon the merits, was one for the jury; and the finding of the jury on the issues submitted to them ought not to be disturbed unless it clearly appears that some action was taken by the trial court which misled the jury, and induced them to render a verdict that otherwise would not have been rendered.
The first ground upon which the plaintiff in error relies to obtain a reversal of the judgment below is that the plaintiff below did not prove the fact which she alleged in her complaint, namely, that at the time the present action was brought she was a citizen of the state of Illinois, and a resident of Tazewell county, in that state. It is claimed that the defendant below put this allegation in issue by its answer, and that, because it was not clearly proven on the trial, the lower court should have directed the jury to return a verdict in favor of the defendant company, as it was requested to do. This contention, we think, should be overruled for the following reasons: The jurisdictional question was raised in the trial court in no other way than by the peremptory instruction to return a verdict for the defendant to which we have last alluded, and that instruction neither advised the trial judge nor the opposing counsel that it was asked because the plaintiff had not proved that she was a citizen of the state of Illinois, and because the court was for that reason without jurisdiction. After carefully scanning the record, we have no reason to believe that the lower court acted upon the instruction with the, understanding that it was intended to challenge the sufficiency of the evidence to establish that fact. Besides, if it had been given, and a verdict and judgment in accordance therewith had followed, the judgment would have operated as a bar to the furth prosecution of the cause of action in any court, since the record would not have shown upon what ground a recovery was denied, whereas the necessary jurisdictional averments were contained in the plaintiff's petition. It goes without saying that the defendant was not entitled to a judgment that would have had such an effect, even if the point which it made was well taken. At most, it was only entitled to a judgment that the case be dismissed for want of jurisdiction. If the instruction in question was asked with a view of challenging the jurisdiction of the court, it should have been so framed as to disclose that fact; that is to say, if counsel for the plaintiff in error believed that the plaintiff had failed to prove with sufficient certainty that she was a citizen of the state of Illinois when the action was instituted, they should have so advised the trial court, and not allowed it to act on the instruction in the dark. If the purpose of the request had been disclosed, and the evidence already introduced had been deemed insufficient by the trial court to establish her citizenship, the requisite proof that the plaintiff had in fact taken up her abode in the state of Illinois, with intent to make it her domicile, would undoubtedly have been forthcoming. As it was, the testimony which was introduced showed that she went to Illinois five months before the action was brought, and resided there continuously until the suit was filed, and for a month or more thereafter, when she returned to the city of St. Louis on a visit to her relatives, remaining a week or more, and that she then returned to Illinois, where she has ever since resided. This evidence was doubtless regarded as sufficient to establish the fact that she was a citizen of Illinois, inasmuch as no plea to the jurisdiction had been interposed, and the fact of citizenship had not been challenged otherwise than by a general denial of all the allegations of the complaint which was contained in the defendant's answer. This method of raising the issue was not calculated to attract serious attention. Moreover, it cannot be successfully maintained that upon the face of the entire record the judgment below appears to be void for want of jurisdiction. We accordingly hold that the instruction, in the form...
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