Amato v. Northern Pac. R. Co.

46 F. 561, 1891 U.S. App. LEXIS 1314

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: June 24, 1891
• Status: Published

Opinion

Coxe, J.

The verdict was not against the weight of evidence. It is true that the plaintiff testified to one version of the accident and several witnesses called for the defendant testified to a different, and wholly irreconcilable, version; but this did not authorize the court to take the question from the jury. Such disputes are peculiarly within their province. A verdict, so rendered, should not be disturbed if there is any evidence to sustain it. Davey v. Insurance Co., 20 Fed. Rep. 494; Bust v. Steam-Boat Co., 24 Fed. Rep. 188; Greany v. Railroad Co., 101 N. Y. 419, 423, 5 N. E. Rep. 425; Sherry v. Railroad Co., 104 N. Y. 652, 10 N. E. Rep. 128. It was not error to submit the question of the plaintiff’s negligence to the jury. Contributory negligence is a defense in the federal courts; the burden is upon the defendant to prove it. Hough v. Railway Co., 100 U. S. 213; Coasting Co. v. Tolson, 11 Sup. Ct. Rep. 653, 139 U. S. 551. As a general rule this question is for the jury. It is only where the evidence is practically undisputed and the inferences deducible therefrom point to the conclusion that the plaintiff was at fault, and to that conclusion alone, that the court is justified in determining the question as matter of law. Dunlap v. Railroad Co., 130 U. S. 649, 9 Sup. Ct. Rep. 647; Kane v. Railroad Co., 128 U. S. 91, 9 Sup. Ct. Rep. 16; Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. Woodson, 134 U. S. 614, 10 Sup. Ct. Rep. 628.

The question of plaintiff’s negligence was one of fact and it was submitted under instructions as favorable to the defendant as it could expect. If the jury found that the defendant, having theretofore conveyed the workmen across the bridge to their homes at the end of the day’s work, neglected on the occasion in question to provide the usual transportation, and ordered them to return after night-fall, on foot, across a long and slippery bridge, high above the water and unprovided with a footway; if the jury found that the plaintiff was induced to take this perilous journey upon the assurance of the defendant through its agent —the plaintiff’s foreman — that it was entirely safe to do so as no engine would cross the bridge for two hours; if the jury found that the plaintiff relied upon this assurance of safety, and, being disabled, was devoting his attention and using his best energies to avoid the dangers beneath his feet; if they found that while in such a position he was run over by a locomotive, without signal or warning so that he did not see it until too late to escape; they w'ere at liberty to find that the defendant had not succeeded in proving, by a preponderance of evidence, that the plaintiff was guilty of contributory negligence. The uncontradicted testimony that he was told by the defendant’s agent at half past 5 that for two hours no engine would cross the bridge certainly distinguishes the case from that of a mere trespasser or the case of a person rightfully on the track but to whom no such assurance of safety has been given. Bradley v. Railroad Co., 62 N. Y. 99; Erickson v. Railroad Co., 41 Minn. 500, 48 N. W. Rep. 332; Oldenburg v. Railroad Co., 124 N. Y. 414, 26 N. E. Rep. 1021; Palmer v. Railroad Co., 112 N. Y. 234, 19 N. E. Rep. 678; Ormsbee v. Railroad Corp., 14 R. I. 102; Warren v. Railroad Co., 8 Allen, 227; Hooker v. Railroad Co., 76 Wis. 542, 44 N. W. Rep. 1085; Goodfellow v. Railroad Co., 106 Mass. 461.

The exception to the charge was not well taken. It is never error for the court to instruct the jury to consider evidence properly -presented. In the present instance the testimony was highly important and bore directly upon the question under consideration.

It is thought that the court has jurisdiction of the action. Uhle v. Burnham, 42 Fed. Rep. 1. At least the contrary has not been made to appear.

The other questions argued need not be considered for the reason that they are presented now for the first time. No error can be imputed to a trial court for failing to deal with propositions not brought to its attention. As before stated but two exceptions were taken by the defendant, and these have been sufficiently considered.

The motion is denied.