St. Louis & S.F.R. Co. v. Herr

• Decision Date: 20 February 1912
• Docket Number: 2,193.
• Citation: 193 F. 950
• Parties: ST. LOUIS & S.F.R. CO. v. HERR. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

193 F. 950

ST. LOUIS & S.F.R. CO. v. HERR. ^[1]

No. 2,193.

United States Court of Appeals, Fifth Circuit.

February 20, 1912

Lester G. Fant, J. W. Buchanan, Wm. C. Dufour, and H. Generes Dufour, for plaintiff in error.

James Stone and E. M. Smith, for defendant in error.

Before McCORMICK and SHELBY, Circuit Judges, and MAXEY, District judge.

SHELBY Circuit Judge.

1. When this case was in this court before, a statement of the facts was made by the court. 174 F. 938-940, 98 C.C.A. 550. The facts developed on the second trial do not differ materially from the evidence offered on the first.

The following excerpt from the opinion on the former trial shows the question that we held should have been submitted to the jury:

'For the purposes of this decision we may assume-- a fact that we do not decide-- that the evidence was sufficient to justify the court in holding, or the jury in finding, that Herr was negligent in his conduct. Such holding or finding would not in our opinion be conclusive of the case. If Smith, the engineer in charge of the engine attached to train No. 256, did see, or could by the exercise of ordinary or reasonable care have seen, standing on the track, the caboose in which Herr sat and on which he was killed far enough before striking it to have avoided the collision by stopping his train, the plaintiff would be entitled to recover, notwithstanding the previous negligence of Herr. The rule seems to be unquestioned that notwithstanding the person injured was guilty of negligence in exposing himself to an injury at the hands of the defendant, yet, if the defendant discovered the exposed situation of the person in time by the exercise of ordinary or reasonable care after so discovering it to have avoided the injury, and nevertheless failed to do so, the contributory negligence of the person injured does not bar a recovery of damages from the defendant.' 174 F. 943 98 C.C.A. 555.

The court submitted the question indicated to the jury, and there is no exception to the manner in which it was submitted. The contention is that the court should have directed a verdict for the defendant. We had already decided on substantially the same facts that the trial court should have submitted to the jury the question whether or not the defendant, by the exercise of ordinary or reasonable care after the discovery of the decedent's perilous position, could have avoided killing him. 174 F. 943, 98 C.C.A. 550.

2. The action is brought by William A. Herr as the administrator of the estate of the decedent E. J. Herr, and it is alleged in the declaration that the decedent was a single man, that he left no widow or child or parent, and that William A. Herr the plaintiff, was his brother and sole heir and distributee. The defendant pleaded 'not guilty,' and the case was tried on that issue. After verdict was rendered for the plaintiff and after a motion for a new trial was overruled the defendant moved in arrest of judgment on the ground that the suit had been brought by an administrator when there 'was in existence next of kin, to wit, a brother of plaintiff's deceased. ' This defense was in no way called to the attention of the trial court nor to the plaintiff before trial and verdict. The plaintiff being both the administrator and sole heir and distributee, the suggestion means that the plaintiff has sued in the wrong capacity, and that he should have sued as sole heir and distributee and not as administrator. It is urged in this court with great earnestness and ingenuity that the judgment should be reversed; that, where there is an heir, the administrator cannot sue, but the action must be brought in the name of the heir. On the trial below, and when the case was in this court on the first writ, it seemed to be assumed by both parties that this was a case in which the 'legal or personal representative' of the person killed could sue. Code of Mississippi, Sec. 4056. But, assuming that the position of the defendant is correct, that the action should have been brought by W. A. Herr individually and not as administrator (Mobile, J. & K.C.R.R. v. Hicks, 91 Miss. 273, 46 So. 360, 124 Am.St.Rep. 679), does it follow that the judgment should now be reversed? The plaintiff is both the administrator and the...