Sutherland v. Payne

• Decision Date: 01 July 1921
• Docket Number: 3495.
• Citation: 274 F. 360
• Parties: SUTHERLAND v. PAYNE, Agent.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F. 360

SUTHERLAND v. PAYNE, Agent.

No. 3495.

United States Court of Appeals, Sixth Circuit.

July 1, 1921

Newcomb Newcomb & Nord, of Cleveland, Ohio, and Sheldon & Rinto, of Ashtabula, Ohio, for plaintiff in error.

Squire Sanders & Dempsey, and Thos. M. Kirby, all of Cleveland Ohio, for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

On the 11th day of December, 1919, the plaintiff in error, Hugh A Sutherland, filed his petition in the United States District Court, Northern District of Ohio, Eastern Division, against Walker D. Hines, Director General of Railroads, to recover for personal injuries sustained by him by reason of a passenger train belonging to the Pennsylvania Company and operated by defendant, striking the automobile in which plaintiff in error was riding, at the Nathan street crossing in the city of Ashtabula, Ohio.

The petition stated three several assignments of negligence on the part of the defendant in the operation of this train. It contained further averment that the defendant was negligent in allowing the crossing to become defective, unsafe, and out of repair. As a separate ground of negligence plaintiff averred that after the defendant's engineer and fireman, in charge of said train, saw plaintiff upon the crossing, in front of said engine and in a place of danger, they negligently, carelessly, and recklessly failed to exercise ordinary care to stop the engine or to so operate the same as to avoid running upon and against the plaintiff's automobile and injuring the plaintiff.

The defendant answered, denying the allegations of negligence contained in the plaintiff's petition, and, further answering, averred that plaintiff was guilty of negligence directly and proximately contributing to his injury.

On the trial of the cause the jury returned a verdict for the defendant, upon which verdict judgment was rendered accordingly.

The plaintiff in error seeks a reversal of this judgment for error of the court in refusing to charge the jury as requested, in reference to the 'last chance doctrine,' as alleged in the fourth and fifth paragraphs of the plaintiff's petition.

It is insisted upon the part of the defendant in error that this record fails to show that the plaintiff made any such request to charge. It does not affirmatively appear from the record that the plaintiff made any such request, although what purports to be such a request is found in the assignment of errors. It does appear, however, that after the court had charged the jury, the plaintiff excepted--

'to the charge of the court in withdrawing from the consideration of the jury the fourth specification of negligence, therefore not permitting the jury to pass upon the question as to whether or not, after seeing the plaintiff on the tracks and in front of the train, they exercised ordinary care to try to so operate the train as to avoid injuring him.'

This exception we think sufficiently presents the question especially in view of the fact that the court, in stating the issues to the jury in its general charge, did not refer to the fourth assignment of negligence contained in plaintiff's petition as one of the issues made by the pleadings in this case. Aside from any request to charge on any phase of the case, it is the duty of the trial court to submit to the jury all the...