HATHAWAY V.:EAST TENNESSEE, V. &: G. R. R. , ' C"
489
the parties, he win. s'tate the account as to each tract of lim'd, and as to the newspaper properly, separately, and,' if there be transactions between the parties outside of these matters, he will state an account between the parties as to them for the assistance of the court inm'akinga final disliosition of the case. to subsequent dealings
J.
I agree to the decree ordered.
HATHAWAY
v.
EAST TENNESSEE,
V. & G. 'R. R.
«(Mcuit Court, S. D. Georgia, lV, D. October. 1886.)
: Action. on theca,se against a. railroad company for damages. tion for direction ·of verdict. . Lyon ct for plaintiff. Ba can' ct Rutherford, for defendant.
Mo-
, SPEER, J. '; The questi?n whether or not negligence existed is erallya questlOn for the Jury. It has been held that the case should j1.tty (1) .when the factswhich,)f true, would con. alwllysgo to stitute evidence of negligence, are controverted; (2) where such faets
490
FEDERAL
REPORTER.
are not controverted, but wbere there might be a fair difference whether tpe inference of negligenceahould. be drawn; (8) when at the same time ,the facts are in dispute, and the inferences to be drawn from them a;reqoubtful. In other words, the question of negligence is for the jury when there is doubt as to the facts, or as to the inferences to be drawn from them. When, however, it is assumed that the evidence which is ,favorable to the plaintiff is true, and no fair inference that the defendant had been guilty of a failure of duty could be drawn from such evidence, the judge should, according to the practice of the court, decide the case by peremptory instructions to the jury. In the CO\l1;ts of theshlte of G-eorgia it is held" that when there is any evidence, however slight, tending to support a material issue, the case must go to ,the jury, in deference to the theory that they are the exclusive judges of the weight of evidence," (Mercier v. Mercier, 48 828; Johnston v. Crawley, 22 Ga. 848; Stamper v. Hayes, 25 Ga.' 546; Phillips v. Brigham, 26 Ga. 617;) and a verdict based upon such a scintilla of evidence will not be disturbed, although the court trying 'the case is dissatisfied with the verdict, and is of the opinion itiS/l.gainstthe weight of the evidenoe. This doctrine is not recognized in the courts,oBhe United States. In the case of the Commissioners, etc., v. Clark, 94 U. S. 278-284, Mr. Cr,IFFORD delivering the opinion, it is held the judges are no longer I'equired to submit a case to the jury merely because some evidence,has been offered by the party having the burden of proof, unless the evidence' be' of such a' character that it would warrant the jury to proceed in finding a verdict in favor of the PlIorty adducing such evidence. Decided cases may be found where it is held that, if there isa scintilta of evidence in support of a case,the judge is bound to leave it to the jury; but the modern decisions have established a mote reasonable rule, to-wit, that, before the evidence is left to the jury, .thereis or may be in case a preliminary question for the judge,not whether there is literally no evidenee, but whether there is allY upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Mr. GRIER announeedin Parks v. Ross, 11 How. 873, ' the follo"'irig ·forcible propositions: "Undoubtedly it is the peculiar province of the jury to find all matters of and of the to gepige all questions of law. But a jury lias no right to assuiilethe truth of any material fact without some evidence legally sufficient to establish it. It is therefore error in the conrtto instruetthe jury find a material fact when there is no evidence from which it that they may be legally inferred. Hence th,e practice of granting an· instru.ction like the present, which makes it imperative upon the jury to find a verdict for the defendant, ,an(\ whi.ch has in many states superseded the ancient practice. of a demurrer to the evidence.. It answers the same purpose, and should be tested by the same rules. A demurrer to evidence admits, not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom. "
HATHAWAY 'V.·EAS1'lENNESSEE;V.
&: G. R. R·
491
.m Hickman v.Jones,9 Wa;1l.J97-201, it is declared tice SWAYNE "when there is'IiQ evidence, or such a, defect in it that the law not permit a verdict for the plaintiff to be given, suchan instruction to the jury mal be properly demanded, and it is the duty of the .court to give it, and error to refuse it." And in Merchants' Bank v. State Bank, 10 Wall. 604-687, it' is, in the opinion of the supreme court of the United States, delivered by the same eminent jurist, held that, according to the settled practice of the courts of the United States, it is proper to give such instructions if it is clear that the plaintiff cannot recover. "The practice," he declares, "is a wise one. It saves time and costs. It gives the certainty of applied science to the results of judicial investigations. It draws clearly the line which separates the province of the judge and jury, and fixes where it belongs the responsibility which should be assumed by the court." Chief Justice MARSHALL, in the early history of the great tribunal which has rendered so renowned the jurisprudence of America, in Pawling v. U. S., 4 Cranch, 219, announced the same principle:
will
"The general doctrine [said he] on a demurrer to·theevidence has been correctly stated at the bar., The party demurring admits the truth of the testi,. mony to which he demurs. and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit, but the testimony is to be taken most strongly against him; and such conclulJions as a jury might justifiably draw the court ought to draw."
Mr. JtisticeMiLLER, in Plea,sants v. Fant, 22 Wall. 116; 121, reiterates this rule:
J22, '
"It is the dut;y of the court, in its relation to the jury, to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of 'passion or prejudice, or from any other violation of his lawfulrights.intheconduct of a tdal. This is done by making plain to them the issues they are to try; by admitting only such evidence as is proper in the&e and rejecting all else; by instructing them in the rules of law by which that evidence is to be examined and applied; and finally, when necessary. by setting a.'!ide a verdiet which is unsupported by evidence or contrary to law. In the discharge of'this duty it is the province of the court, either before or after the verdict. to decide whether the plaintiff has given evidence: sufficient to support or jU$tify a verdict in his favor, not whether on all the evidence the preponderati,ng weij,tht is in hiB favor.-that is the business of the jury,-but, conceding to all the evidence offered the gre!ltestprobative force which, accordmg to the law of evidence, it is fairly entitled to, is it sufficient to justify the vextdict? If it does not, then it is the duty of the court, after a verdict, to set asidt>, and grant a new trial. Must the court go through the idle ceremony, in such a case, of submitting to the jury the testimony on which plaintiff relies, when it is clear to the jUdicial mind that, if the jury should find a verdict' in favor of plaintiff, that verdict would be set aside, and a new triaIhad? Such a proposition is absurd; and, accordingly, we hold the trueprineipletQbe .that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant l\o verdict,for plaintiff. the court BhOllld,1l1lJY,80 to the jUry. In such case theparty can submit to lJ. nonsuit, andtry his case if 'he can strengthen it, where the local law forbids a nonstiit that
at
492'
FEDERAL ImpORTER.
st.age of the trial; or, if he hlloS done his best, he must abide the judgment of the court, to a right of' review, whether he has made such a case as ought to be submitted to the jury; such a case as a jury might justifiably find for him a verdict." . In view of these and other decisions, we must accept it as a settled rule, adjudged by the supreme court of the United States, that when the judge is clear of doubt that a verdict ought to be rendered either for.the plaintiff or defendant, and that it would be his duty to set a contrary verdict aside, he ought to instruct the jury so to find. On the other hand, such a direction cannot properly be given to the jury, unlesj:; the evidence is such as to leave no room for doubt that it is the duty of the jury to find accordingly. in every way, to The qpCtrinein England is precisely olthe supreme court of the United States. Jewell v. Parr; 13 C. B. 916; Toomey v. London, B. cf; S. C. Ry. Co., 3 C. B. (N. 150;.,Wheelton v. Hardi.9ty, SEI. & BL 262...,' , rule throwing. everything to the jury if there is a scintilla' pfevJ.4ence is also ad vised by the, courts of several states. In Maryland the court passes on the legal sufficiency of the evidence ; in Missolid, on its legal effect. See, also, Wittkowsky v. Wasson, 71 N. C. v. Manhatt(tn Ry. Co., (New York. court of appeals,) December 6, 1886; S. C. 9 N. E. Rep. 450. Daily It i:sunquestionably true that the statute of Georgia, (Code, 8248,) which has been very recently, in Vicksburg & M. R. Co. v. Putnam, 7 Sup. Ct. Rep. 1, decided to have no standing in the courts of the United · . States,' has had and is now having a most damaging. and injurious effect upon the administration of justice in the state courts. It is, perhaps, of all causes the most fruitful occasion for mistrials, impl'operverdj,cta, and new trials,an4 the consequent delay and failure of justice.. The experienced and a.ble judges who preside in the courts of the state, qualified to sift testimony, experts in the detection of fraud and falsehood, unprejudiced, are absolutely powerless to aid the jury to ascertain the truth, and to make a proper verdict. Thus the people are in. a large .measure of the best results of the skill, training, and experience of their judges. The judge may lay,down genera.l instructions as tothe-law. Here he must stop. In the Ianguage of It gifted publicist of the day, Mr. Thompson, the author of the Law of Negligence : "Such a system is scarcely more wise than it would be to select a lawyer, It doctor, a clergyman, a farmer, a merchant, a carpenter,a shoemaker, a blacksmith; a saloon keeper, a street-cardriver, a capitalist, or a barber, constitute them .a s\lip'screw, and start them out on a voyage in company with an experienced navigator, who is permitted to give them general instructions on the theory ofna.vigation, but who is prohibited from giVing them any positive ord.er p()W to navigate the llhip, and from correcting any blunders they may make in navigating it." My awn opinion is that the terrible burden borne by the supreme apcqurt of the state is largely traceahle to this injurious statute.
EAST TENNESSEE, V. " G. R. B.
493
Now, td apply the doctrine settled by the decisions cited to the case in ha.nd. The plaintiff wa.s an employe of the defendant corporation, as lIag.man. ',' He was injured,while in the performance of his duty, in the fe-Rowing manner: The freight train was moving slowly from the sta. tion. The engineer told the plaintiff, who was on the track,that he was going to move Ol1t slowly, and toget aboard. The plaintiff replied : "All right; I will signal you to go ahead fast, as soon as I get on the cab." The plaintiff wentdowIrthe side track until the oab was opposite to him. It was not really a cab, but a box car used in lieu of 8 cab. There was a ladder by the door, and an iron loop or ,step fastened to the 'car, under the door (ff the oar, used as .0. oab. ' The plaintiff caught'lroICl'of the ladder with his hands, and attempted to get into the door. Before he made his step, as he testified, his feet strtlcks. pile of sand. He lost hold of the ladder, and, falling on the pile of sand, rolled under the mQvingcars,andwas injured as described. It was a dark night,with a "drizzly" rain. The plaintiff had a lantern on his arm. He stopped, to await the cab, near the pile of sand, and at that end 1 in the direction ·ftom which the train was The sand, it was stated in the declaration, had been put there since he made "his last trip down the road." That; he testifies, was the day before the accident. The plaintiff's te,stified that one or two car-loads of sand in the pile; 'that it had been brought there to fm a depression or sink in the road.bed and between i the tracks. The evidence is clear and undisputed that the pile of sand was ,onlyfrom one and a half to two feet high; that the construction tra.in bl'bught' the sand to this spot, a.nd the section ha.nds were to see tha.t 'it 'Was properly distributed. Thei-ais' no evidence, to 'show that the sand was improperly placed. There is no satisfactoryevi. dence astti when the sand was dumped at this spot. Theplaintiff's witness said that there was a sink there that had to be filled. ,. 'l'he declarati.on avers that the sand was unnecessarily placed at this andullnecessarily kept there; but there is literally no scintilla of evidence to support this statement. The plaintiff· himself Jurnishesn() such evidence by. his testimony; and his witness, who spoketothis point, said there was a sink there that had to filled. So far as the evidence informs the court and jury, the sand may have been placed at this spot after sunset the evening before. ,The testimony is that it had been placed there by the construction train, in the usual and ordinary way. It was thrown the, traoks, where it properly should have been thrown ·. Another witness for the plaintiff'states he had not seen thesandnntil that night. Now, there can be no reasonable inference of negligence from these facts. , Acqurt could not sustain a verdiot;fiIldin,8 negligence to exist in view <;>(the.se.{!loots. It is well known tbat the ra.ilroad cOm. pany must distrihute .earth along its traQk:. It is just 8sessential,to its business and to the safety of its trains, as its cross-ties or its steel rails. It must be placed in position to be used; and: thefact>that· it
494
.:: ." ..} ),
was BoplaceCi Cilnnot" in Jtaelf. in the .absence of· other be sutpcientto warraJiftthe inference of negligence. It is in this condition that ·theeviden<le.Ieavesit. Undex BU'ch circumstances it is the duty of thecoul·t peremptorily toinstrul,lt tbf;l jury that there can be no' recovery, and:tbat they must find for, defendant. : I need:not, I trust, say, that the unfortunate·,plaintiff bas my sympathy,as a man; but oQurts, in the determination oftb.e rights of parties,. are governed by the settled rules of law; not by the impulses of the heart. NOTE BY THE COURT. I am largely inMbtE!ll for the authorities cited in this decision.tothA excellent the Jury," contributed to the profession D., Thompson.
'"PENFIli:LD,t1. OSEElAPEAKE,
O. & S. ,W. R. Co.l
«( azrou"
Oourt, lD., ,pl;:New York. December 28, 1885.) AMOUNTS To.
I.
If SAME-STATEMENT ,J'.'
, Mere' intention to: changeona's residence does not affect that change. Coupled with such an intention.' there must be acts ,done, and one act must be that of living for some ,period ofthne in the place of intenqed residence, OF C A S E . , ' : . '. "
'In AUgust, 1883. plaintiff. a resideiit of. St. Louis,formed the intention of Itt.kingUP his residence in Brpok1yn"New York. In pursuance of .that iutento Brooklyn in August; andbiswife, upon " tion, he sent his wife anQ " 'arriving there, hired a house;,'in WhiCh she and her children thereafter lived. ",Plaintiff himself came to Brookly:n'inJanuaryof the next year.. ' Held, that F':·' On November 30, 1883, he h¢ not acquired a residence in New York. 8. SAME-LIMITATION OF 890, CODE CIVIL ,PBOC. N, Y.-TENNESSEE STATUTES. '
, ....:On the trial, a motion to directts'VerdiCt for defendant was granted on the . ground that plaintiff was a ,resident .of Tennessee, and that this action was , barred by section 890 of the'NewYorJ,{ Code of Civil Procedure, by virtue Of 'which the laws· of TenneS5ee -limiting the time to COmmence an action like · \.' i .', .thismuSt eOntJ:Ol. It wall admitted that the laws of provided that · like. action tor personal injuries must "e comme!1ced withi.n one year from . the time said action accrues:' 80 that the plaintiff lost his right of action on ,'( 'November,BO·.1888, unless previaus to that date he became-a. resident of New . York, and a motion for a new trial 011 the ground that he, had before that , I ' . date acquired .
':At
'Motion for new'triitl. ·Rufus M.. WilliarM, for' plaintiff." Oharles H. ('Pweed, for defendant: : The questiort'i1pon which the tnotion mlide at the trial ';;! (-';,
"; 'BENl\)DICT':J.
ant
to direct a' verdict· fot the'defendant 'Was decided in favor Of the defendtWas whether' the plainnff'e' Cause of actioD; being for an injury re-.