Whittle v. St. Louis & S.F. Ry. Co.
| Decision Date | 22 October 1900 |
| Citation | 104 F. 286 |
| Parties | WHITTLE et al. v. ST. LOUIS & S.F. RY. CO. |
| Court | U.S. District Court — Western District of Arkansas |
In 1893 this action was instituted to recover damages for the death of the husband and father of plaintiffs. A trial was had, and a judgment entered on the verdict of a jury for the sum of $8,000. The cause being removed by writ of error to the United States circuit court of appeals for this circuit, that court reversed the judgment of the court below; the majority of the court holding: 'The circuit court erred, we think in refusing, upon the testimony contained in this record, to charge the jury, as it was requested to do, that the deceased was guilty of contributory negligence, and that there could be no recovery for that reason. ' Railway Co. v Whittle, 40 U.S.App. 23, 20 C.C.A. 196, 74 F. 296. After the entry of the mandate of the court of appeals, plaintiffs filed this motion in the court below to be permitted to continue the prosecution of this action as poor persons. The affidavit accompanying the petition, and upon which it is based, does not allege that plaintiffs have any new evidence but only 'that they believe that they are entitled to the redress sought by their suit,' and also that 'they are too poor to pay the costs of the suit, or to give security for the same.'
Ira O Oglesby, for the motion.
B. R. Davidson, opposed.
TRIEBER District Judge (after stating the facts).
The act congress of July 20, 1892 (27 Stat. 252), provides:
'Any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement under oath, in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action.'
It is unnecessary to determine in this cause whether, as contended by counsel for defendant, it is not too late to file a petition for leave to sue in forma pauperis, after the cause has been tried once, and upon error reversed by the appellate court, as the petition must be refused on other grounds, about which there can be little controversy. Section 4 of the act provides:
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