Union Pac. Ry. Co. v. Jones

• Decision Date: 01 February 1892
• Citation: 49 F. 343
• Parties: UNION PAC. RY. CO. v. JONES.
• Court: U.S. Court of Appeals — Eighth Circuit

49 F. 343

UNION PAC. RY. CO. v. JONES.

United States Court of Appeals, Eighth Circuit.

February 1, 1892

John M Thurston, Willard Teller, and H. M. Orahood, for plaintiff in error.

E. T Wells, R. T. McNeal, and John G. Taylor, for defendant in error.

Before CALDWELL, Circuit Judge, and SHIRAS and THAYER, District Judges.

SHIRAS District Judge.

This action was brought in the circuit court of the district of Colorado for the purpose of recovering damages for personal injuries alleged to have been caused to plaintiff while she was a passenger upon a train upon the defendant's road, the car in which the plaintiff was riding, with her mother and sister, being derailed. The error mainly insisted upon by the plaintiff in error is that the trial court consolidated this cause, for the purposes of the trial, with two other cases pending against the company in behalf of the mother and sister of the plaintiff. The following extract from the bill of exceptions will show the action of the court in the particular complained of, to-wit:

'Be it remembered that on this 27th day of June, 1891, this cause coming on for trial, * * * and it appearing that there was on the docket of said court at that time, ready for trial, and duly assigned for trial on that day, two other suits against the same defendant, to-wit, one by Katherine Jones and one by Winifred Jones, and it appearing that the causes of action arose out of one accident and one alleged negligence on part of the defendant, the defendant insisted that the three cases should be consolidated and tried as one cause, and that, if a verdict was found, there should be but one verdict and one judgment; but, the plaintiff objecting thereto, the court decided to try all three of said causes on one trial, but to take a verdict in each case and render judgment in each of the three causes, to which ruling the defendant, by its attorneys, then and there excepted.'

From this statement it is evident that two propositions were brought to the attention of the court below; (1) Might not the three cases, then pending, be consolidated and tried together? (2) If tried together, in what form should the jury return their verdict? The argument on behalf of the railway company before this court has been directed to the point that the company was put to a great disadvantage in being compelled to try the three cases at one time and before one jury. Granting all that is thus urged to be true, the difficulty is that the action of the court below, in directing the cases to be tried before the one jury, was brought about by the railway company itself, and it cannot be heard to say that there was error committed in this particular.

It is attempted to be maintained in argument that the motion of the company for the consolidation of the causes for trial was so connected with its suggestion that only one verdict should be returned, and one judgment be entered, that the refusal of the court to direct a single verdict relieves the company from the responsibility of having insisted that the causes should be tried as one. This contention is inadmissible. By the action of the railway company two questions were presented to the trial court for decision: (1) Shall the causes be heard as one before the same jury? (2) If so, in what form shall the verdict be returned? The court granted the request of the company that the three cases should be heard at the same time before the one jury, and the company is now estopped from questioning the correctness of a ruling which it asked to have made, and for which it is primarily responsible. Having granted the request of the defendant that there should be but one trial for the three causes, the court then decided that the jury should be required to return three verdicts, and not one, as asked by defendant. It is open to the defendant to aver that the court erred in its decision on this question, but no argument is needed to show that the court decided correctly. If a single verdict had been returned, and a single judgment had been based thereon, exceeding in amount $5,000, the defendant company would...