Southern Railway Company v. Madden

• Decision Date: 14 July 1955
• Docket Number: No. 7034.,7034.
• Citation: 224 F.2d 320
• Parties: SOUTHERN RAILWAY COMPANY, Petitioner, v. Frank J. MADDEN, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

224 F.2d 320 (1955)

SOUTHERN RAILWAY COMPANY, Petitioner, v. Frank J. MADDEN, Respondent.

No. 7034.

United States Court of Appeals Fourth Circuit.

Argued June 15, 1955.

Decided July 14, 1955.

George H. Ward, Asheville, N. C. (John G. McMaster, Columbia, S. C., on brief), for petitioner.

John L. Nettles, Darlington, S. C. (James P. Mozingo, III, Darlington, S. C., on brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PER CURIAM.

This is a petition for a writ of certiorari to review an order of the District Court granting a new trial as to damages while permitting the remainder of a verdict establishing liability to stand. Plaintiff contends that he was knocked down at a street crossing by cars of the railway company which started suddenly as the result of being bumped by a switch engine. Defendant contends that plaintiff, while drunk, had crawled under the cars to get out of the rain and was injured when they were moved. Plaintiff's testimony as to how the injury occurred was uncorroborated and was contradicted by prior inconsistent statements which he had made to a number of witnesses and which corroborated defendant's version of the matter. Plaintiff was terribly injured, having one leg and a portion of the other foot cut off. The jury awarded him damages in the sum of $5,000. Defendant contends that this was clearly a compromise or sympathy verdict, as the jury would undoubtedly have awarded a very much larger sum if it had believed that a real case of liability on the part of defendant had been established, and that the court should not have set aside the award as to damages without setting aside the entire verdict, and thus giving plaintiff on the new trial awarded the benefit of the testimony which had manifestly been considered by the jury on the issue of damages instead of on the issue of liability, where it should have been considered.

It is clear that the order which we are asked to review is not a final order in the case and hence is not appealable. And we do not think that the statute which allows appeal only from final orders, except in a limited class of cases, can be evaded by the simple device of asking this court to issue one of its extraordinary writs, such as certiorari, or mandamus or prohibition. Columbia Boiler Co. of Pottstown v. Hutcheson, 4 Cir., 222 F.2d 718; Hartford Accident & Indemnity Co. to use of Silva v. Interstate Equipment Corporation, 3 Cir., 176 F.2d 419, certiorari denied 338 U.S. 899, 70 S.Ct. 250, 94 L. Ed. 553; United States Alkali Export Ass'n v. United States, 325 U.S. 196, 65 S.Ct. 1120, 89 L.Ed. 1554.

We think, however, that in the interest of the prompt disposition of this litigation, we should say, in line with our action in Carolina Mills, Inc., v. Corry, 4 Cir., 206 F.2d 76, and Ford Motor Co. v. Milby, 4 Cir., 210 F.2d 137, that all the judges of this court are of opinion that, on the record in this case, the verdict should not have been set aside as to damages without being set aside in its entirety; and that this will be held reversible error if the case should hereafter come before us on appeal from final judgment. See United Construction Workers et al. v. Haislip Baking Co., 4 Cir., 223 F.2d 872. As said by Chief Justice Rugg of Massachusetts in Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, quoted with approval by this court in Schuerholz v. Roach, 4 Cir., 58 F.2d 32, 34:

"`It is

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