Usher v. Scranton Ry. Co.

• Decision Date: 23 September 1904
• Parties: USHER v. SCRANTON RY. CO.
• Court: U.S. District Court — Middle District of Pennsylvania

132 F. 405

USHER v. SCRANTON RY. CO.

United States Circuit Court, M.D. Pennsylvania.

September 23, 1904

Ralph L. Levy and E. W. Thayer, for plaintiff.

Everett Warren, for defendant.

ARCHBALD District Judge.

It was shown by the evidence that the plaintiff's husband, just prior to coming to Scranton, had been earning from $1,200 to $1,300 a year, and while he had not been able to secure a position yielding anything like that during the few weeks he had been in this city, yet it is to be taken as fairly approximating his earning powers. Notwithstanding this however, the jury gave a verdict of but $3,250 to compensate the plaintiff and her child for his death. Assuming the possibility of a speedy marriage by Mrs. Usher, it may be that this would not be out of the way. But not only is this gratuitous, but, under the Pennsylvania statute, the widow sues not for herself alone, but for her minor children also and the sum awarded, taking that into consideration, is utterly inadequate to represent the joint loss of the mother and her child of tender years. The plaintiff is therefore entitled to a new trial as asked for upon this ground.

But so also, is she on the other ground assigned. The liability of the defendant company for the death of plaintiff's husband depended upon proof of the fact that he had been accepted as a passenger at the time of the accident. But the evidence produced at the trial to establish this was of the most meager kind, and the argument of defendant's counsel convinces me that it is not sufficient, as it stands, to sustain the verdict. If the case, therefore, is to be disposed of on the rule for judgment non obstante, on the point to that effect reserved, the rule will have to be made absolute, and the plaintiff turned out of court. It is now shown, however, by the depositions which have been taken, as it was not before, that Usher actually paid his fare to the conductor, who received it from him while he was riding on the step of the car, outside the gate, in which position he was when he was injured. The plaintiff did not know of the existence of this evidence until after the trial, and it is not likely she would ever had obtained it, except as it was brought to her notice from an entirely unlooked for source. In the interest of justice she should now be permitted to have the benefit of it, essential as it is to enable her to make out a case.

It is said, however, that the application for a new trial in the alternative, in case the court should be of opinion that the defendant is entitled to judgment on the...