Union Pac. Ry. Co. v. Harris

• Citation: 63 F. 800
• Decision Date: 08 October 1894
• Docket Number: 439.
• Parties: UNION PAC. RY. CO. v. HARRIS.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

63 F. 800

UNION PAC. RY. CO. v. HARRIS.

No. 439.

United States Court of Appeals, Eighth Circuit.

October 8, 1894

Willard Teller (Harper M. Orahood, E. B. Morgan, and John M Thurston, on the brief), for plaintiff in error.

William B. Felker (William L. Dayton, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

This action was brought in the circuit court of the United States for the district of Colorado by Robert E. Harris against the Union Pacific Railway Company, to recover for personal injuries received by him while he was a passenger on defendant's train. The plaintiff recovered judgment in the circuit court, and the defendant sued out this writ of error.

The complaint alleged, in substance, that the company ran one or more of its freight cars out on its side track, known as the 'Silver Age Mill Siding,' and negligently left the same in such a position that they obstructed the main track or that they were left in an insecure and unsafe position on the side track, and negligently permitted to run upon the main track, so that, when the train upon which the plaintiff was a passenger came along, it ran into these freight cars derailing and breaking to pieces the car in which the plaintiff was riding, and inflicting upon him serious and permanent injuries to his mind and body. In its original answer the defendant denies generally all negligence, but 'admits that it had standing upon its side track, at about the place mentioned in said complaint, one or more freight cars, but denies that the said freight cars were left insecure or unsafe, or in such a position as to interfere with the passage of the train of cars upon which the plaintiff was riding. ' The proof is plenary that the accident was caused by the passenger train coming in collision with the freight cars on this siding, in the manner set out in the complaint. The defendant, in its answer admits 'that it had standing upon its side track' the freight cars in question, and rests its defense on the issue of negligence solely upon a denial of the charge that the freight cars were left on the side track in an insecure or unsafe position, or in such a position as to interfere with the passenger train. The answer contains no allegation or suggestion that any other company had any control over this side track or these freight cars, or that any other company was in any manner responsible for the negligence which resulted in the collision. Upon this state of the pleadings and proofs, it was not error for the lower court to tell the jury there was no room for controversy over the question of the defendant's negligence. The remark of the learned judge who tried the case at circuit, that 'the act of negligence of the servants of the mining company is to be ascribed to the defendant,' must be read in connection with that portion of the charge which precedes and follows it; and, when so read, it means that, if the defendant committed the management and control of its cars on its side track to the servants of the mining company, their negligence was to be ascribed to the defendant. Further consideration of this issue is unnecessary, as we understand the learned counsel for the plaintiff in error, upon the argument, to concede that defendant's negligence was sufficiently established.

The defendant filed a supplemental answer, in which it pleaded in bar of the action a release executed by the plaintiff four or five days after the accident, by the terms of which he acknowledged the receipt of $250 in full settlement of the injuries he received and the property he lost by the accident, 'and in full of all claims and demands of whatsoever character. ' To this defense the plaintiff replied-- First, that at the time he executed the release he was not mentally capable of making a contract; and, second, that the release was obtained from him by fraud; that the defendant's agents represented to him that the defendant was not liable to the plaintiff for the injuries he had sustained, because, as they asserted, the accident was caused by the negligence of another company, that had charge of the side track and freight cars, and which was alone responsible for the injury sustained by the plaintiff; that the defendant's agents further represented to the plaintiff that the paper he was asked to sign was only a receipt for the amount of what it was estimated the medical services rendered him would cost, and for the expenses of sickness and loss of time for two weeks, and for nothing else; and that he signed the paper relying on the truth of these representations, being unable to read it himself, and no one reading it to him.

The chief contention of the plaintiff in error is that the issues arising on the replication to the defendant's supplemental answer should not have been submitted to the jury. It is said the plaintiff cannot in this action avoid the release for fraud, or show that he was mentally incapable of entering into a valid contract at the time he executed it that the release can only be avoided upon these grounds by a suit in equity. This question was not raised in the lower court. The defendant did not demur to the plaintiff's replication upon the ground that a court of law could not try the issues it presented. These issues were tried to the jury without objection, and it is now too late to object for the first time in the appellate court to that mode of trial. The objection that an action should have been brought at law instead of in equity, or vice versa, is waived by a failure to interpose it at the proper time in the court of original jurisdiction. Hollins v. Iron Co., 150 U.S. 371, 14 Sup.Ct. 127, Insley v. U.S., 150 U.S. 512, 14 Sup.Ct. 158; Preteca v. Land-Grant Co., 50 F. 674, 1 C.C.A. 607, 4 U.S.App. 326; Tyler v. Savage, 143 U.S. 79, 12 Sup.Ct. 340; Reynes v. Dumont, 130 U.S. 354, 395, 9 Sup.Ct. 486. If a party, when sued at law, conceives that the action, or any material issue in it, is of equitable cognizance, he must interpose the objection at the threshold of the case, and will not be heard to make it for the first time in the appellate court. The general principle is now well established that an appellate court will not entertain an objection to the form of the action, when the objection was not interposed in apt time in the trial court. It will be presumed that the parties assented to the theory that the remedy adopted was the proper one, and they will be held to that theory on appeal. Moreover, it is a general rule that questions not presented to the trial court will be deemed waived. Elliott, App. Proc. Secs. 658, 679, 690, and citations; Brown v. Lawler, 21 Minn. 327; Brown v. Nagel, Id. 415; Weaver v. Kintzley, 58 Iowa, 191, 12 N.W. 262; Town of Mentz v. Cook, 108 N.Y. 504, 15 N.E. 541; Buffalo Stone & Cement Co. v....