Spiro v. Felton

• Decision Date: 20 March 1896
• Docket Number: 995.
• Citation: 73 F. 91
• Parties: SPIRO v. FELTON.
• Court: U.S. District Court — Eastern District of Tennessee

73 F. 91

SPIRO v. FELTON.

No. 995.

United States Circuit Court, E.D. Tennessee.

March 20, 1896

Ingersoll & Peyton, for plaintiff

Chambers & Head, for defendant.

CLARK District Judge.

It is urged as ground for a new trial in this case that the court allowed plaintiff to prove the number of the ages of the children. It is certainly true that, as a general proposition of law, such evidence would not be relevant. As the right of action given in cases like this for death of a person is under the statute (Mill. & V. Code, Sec. 3130), 'for the benefit of his widow or next of kin, free from the claims of creditors,' and as by the act of 1883, c. 186 (Code, Sec. 3134), damages are also given to the parties for whose use and benefit the right of action survives, from death consequent upon an injury, it seemed to me that this evidence was competent, under the authority of Railroad Co. v. Mackey, 157 U.S. 93, 15 Sup.Ct. 491. I had occasion, in another suit, to pass upon this objection.

Another objection is that there was error in the admission of the testimony of Babcock as to the condition of the track at the place where the accident happened, at the time of Babcock's examination of the place. Thing this was competent, with the explanation of the court, under which it went to the jury; that is, that it was admitted merely as a circumstance tending to show the condition at such time that affected any question in the case. I think it is clear that in view of the question to which the jury was restricted in the court's instruction, this proof could have cut no possible figure in the case. There was no material point in the case whatever respecting the condition of the track.

It is again, said there was error in the admission of testimony to the effect that a chain was used on the cars of other companies across the opening of the rear guard rail of the caboose to a freight train. As the declaration alleged the absence of this chain as negligence, I think the proof was competent, as tending to show that such chains were used by other roads. The competency of this proof, and its weight, were different questions. As the court distinctly said to the jury, in the charge, that the absence of this chain could be no ground of recovery against the defendant company, it is impossible to think that this testimony had any effect on the case, even if its admissibility should be considered doubtful.

It is said, too, that the court should have directed a verdict for the defendant, as proof for both the plaintiff and defendant showed such contributory negligence on the part of the deceased as prevented any recovery. If the court should have given peremptory instruction for the defendant, it is no answer to this objection to say that no motion for such instruction was made; for in Society v. Llewellyn, 7 C.C.A. 579, 58 F. 940, no such motion had been made in the court below, nor was any such motion the basis of any assignment of error. Nevertheless, the circuit court of appeals for this circuit (Judge Taft giving the opinion) said that it was the duty of the court to have given such instruction, and the judgment was reversed upon this as well as one other ground. But I do not think, on the proof in this case, the court could properly have withdrawn the case from the jury by positive direction; and this brings us to the last objection taken, which is that the verdict is against the weight of evidence.

This is a question that has given this court great trouble, not only in this but other cases; and I shall be very glad indeed when the circuit court of appeals for this circuit shall have occasion to pass judgment upon this question, so that this court may have an authoritative general rule, at least, in the determination of this question.

I wish to say, in the outset, that I think the decided weight of the evidence, both as to quantity and quality, shows that the deceased came to his death as the result of his own negligence, in not getting up and going out of the train when it stopped at his point of destination, and that he had ample time to have done so, if he had used reasonable care and diligence on his own part. I think the proof shows, by the same decided weight, that the accident to him is due to the fact that he remained in the caboose, engaged in conversation, until, after ample time to have left the car the train was started in a backward motion in its regular operations, and that the deceased was thrown therefrom by reason of being on the rear platform while the train was in such motion, and most likely when it stopped moving backward and let out the slack, or when it started south a second time. But, although entertaining this view of the evidence, I do not feel that I can lawfully set aside the verdict on that ground alone. I desire not to be misunderstood about this proposition. The question here is one of the weight of the evidence. It is not a question of there being no evidence to support the verdict, misconduct on the part of the jury, error in the charge of the court, or in the admission or rejection of evidence, or of the many other grounds on which a new trial may be granted; but the question is, when no other valid ground of rejection to the verdict exists, can the court set...