Tucker v. Baltimore & O.R. Co.

• Decision Date: 07 February 1894
• Docket Number: 50.
• Citation: 59 F. 968
• Parties: TUCKER v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

59 F. 968

TUCKER v. BALTIMORE & O. R. CO.

No. 50.

United States Court of Appeals, Fourth Circuit.

February 7, 1894

V. B Archer, for plaintiff in error.

John A Hutchinson, for defendant in error.

Before GOFF, Circuit Judge, and SEYMOUR and SIMONTON, District Judges.

SIMONTON District Judge.

This case comes up by writ of error to the circuit court from West Virginia. The plaintiff in error, plaintiff below, brought his action in the state court against the Baltimore & Ohio Railroad Company for injuries incurred on one of its tracks in the railroad yard. The cause was removed into the circuit court of the United States, and was tried with a jury. At the close of the testimony for the plaintiff, the judge presiding withdrew the testimony from the jury, and instructed them to find for the defendant. Of the four assignments of error set out in the brief, but one was pressed at the hearing. The others were practically abandoned. The plaintiff in error insists that the court erred in directing the jury to find for the defendant.

The rule upon this question has been frequently stated and is well settled. 'It is the settled law of this court,' says the supreme court in Randall v. Railroad Co., 109 U.S. 482, 3 S.Ct. 322, 'that when the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.' The court then quotes with approval the case of Railway Co. v Jackson, 3 App. Cas. 193, deciding that it is for the judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether, from those facts, when submitted to them, negligence ought to be inferred. The rule is again stated in Railroad Co. v. Converse, 139 U.S. 473, 11 S.Ct. 569:

'It is contended that the court erred in not submitting to the jury the issue as to the defendant's negligence. Undoubtedly, questions of negligence in actions like the present one are ordinarily for the jury, under proper directions as to the principles of law by which they should be controlled; but it is well settled that the court may withdraw a case from the jury altogether, and direct a verdict for plaintiff or defendant, as the one or the other may be proper, when the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.'

In Kane v. Railway Co., 128 U.S. 94, 9 S.Ct. 16, this rule was held applicable to a case like the present one, in which the defendant introduced no evidence. In Mitchell v. Railroad Co., 146 U.S. 513, 13 S.Ct. 259, the court directed a verdict, on the ground that the evidence showed contributory negligence on part of plaintiff. The whole question is discussed in Central Transp. Co. v. Pullman's Palace Car Co., 139 U.S. 40, 11 S.Ct. 478.

The exception in question is accompanied by all the testimony in the case. This testimony was produced on the part of the plaintiff. It was not contradicted or answered by any evidence on the part of the defendant. If there were any discrepancies in it, the plaintiff must accept the consequences. Such discrepancies do not present, technically, an issue of fact, as between plaintiff and defendant, which must be submitted to a jury. The motion that the court instruct the jury to find for the defendant is, in effect, a demurrer to the evidence. Was the course of the court below within the rule stated?

The plaintiff was occasionally employed by shippers to assist in caring for cattle transported on lines of the defendant. He was perfectly familiar with the yard of the defendant, with the tracks running through it, and knew that locomotives and trains constantly passed to and fro on the tracks. On the morning of the accident complained of, about 10 or 11 o'clock, having been...