Gambar halaman
PDF
ePub

ST. LOUIS MERCHANTS' BRIDGE TERMINAL RY. CO. v. MUNGER. (Circuit Court of Appeals, Eighth Circuit. October 29, 1917.)

No. 4828.

CARFIERS 347(2)-PASSENGERS-CONTRIBUTORY NEGLIGENCE.

Plaintiff, proposing to take a train operated by one of defendant's tenant companies between the city where he was in business and a nearby municipality, repaired to its station a few minutes before train time. The waiting room of the station opened upon an inclosed space separated from the tracks by a high iron fence equipped with sliding gates, which could be locked and were in charge of a gateman who controlled the movements of passengers through them. The gateman announced the train in the waiting room, passed through the crowd of passengers in the inclosure, unlocked the gate near which plaintiff was standing, went through, and stood outside. As the approaching train slowed down, a woman near the gate opened it and the passengers went through. About the time the train stopped, a switch engine, with headlight burning and bell ringing, approached on the track next to the inclosure. Plaintiff went through the open gate and started to cross the near track diagonally, with his back towards the engine, and was struck by its beam. Held that, while plaintiff was a passenger, yet as he was complete master of his movements and his powers of observation, unlike a passenger on a train, it was improper to declare, as matter of law, that plaintiff was free from contributory negligence, but that question should have been submitted to the jury.

In Error to the District Court of the United States for the Eastern District of Missouri; David P. Dyer, Judge.

Action by Carlton A. Munger against the St. Louis Merchants Bridge Terminal Railway Company. There was a judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

T. M. Pierce, of St. Louis, Mo. (J. L. Howell, of St. Louis, Mo., on the brief), for plaintiff in error.

Edward E. Campbell, of Alton, Ill. (Marion C. Early, of St. Louis, Mo., on the brief), for defendant in error.

Before HOOK, SMITH, and STONE, Circuit Judges.

HOOK, Circuit Judge. Munger recovered a judgment against the Terminal Railway Company for personal injuries received at its passenger station at the foot of Washington avenue, St. Louis, Mo. One of the defenses was plaintiff's contributory negligence, but the trial court charged the jury that the evidence of it was not sufficient to submit to them. Of this charge, among other things, the defendant complains.

The waiting room of the passenger station opens upon an inclosed space separated from the railroad tracks beyond by a high iron fence. equipped with sliding gates. Outside the inclosure two railroad tracks run north and south parallel with the gates. North-bound or outgoing

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

trains use the east or more distant track; incoming or south-bound trains use the west track nearer the inclosure. The gates, which may be locked, are in charge of a gateman, who controls the movements of passengers through them. As bearing upon the question of contributory negligence there was substantial evidence of the following facts, and in a case where a trial court takes an issue from a jury the substantial evidence in opposition must be regarded: On the evening of November 9, 1914, the plaintiff who was in business in St. Louis and lived at Alton, Ill., went to the station to take a north-bound train to his home. The train was operated by one of the defendant's tenant companies. It ran on the east track and was due at the station about 5:53 p. m. The plaintiff arrived a few minutes before train time and joined a crowd of about 40 passengers, most of whom were in the inclosure near the gates. As a frequent patron of the place, he was familiar with the surroundings and the customary methods of operation. The gateman announced the train in the waiting room, passed through the crowd of passengers in the inclosure, unlocked the gate near which the plaintiff was standing, went through, and stood outside. He closed, or nearly closed, the gate after him, without locking it. As the train slowed down, a woman nearest the gate opened it, and the passengers went through. About the time the train stopped, a switch engine, with headlight burning and bell ringing, came south on the track next the inclosure. The plaintiff went through the opened gate, and started to cross the near track diagonally, with his back or left shoulder towards the north, when he was struck by the beam of the moving switch engine and sustained the injuries complained of. He was intent on boarding the rear coach of the north-bound train, and neither looked about him nor paid attention to the signals.

The court should not have declared as matter of law that the plaintiff was free from negligence, but should have submitted the question to the jury. See Terry v. Jewett, 78 N. Y. 338; Warner v. Railroad, 168 U. S. 339, 18 Sup. Ct. 68, 42 L. Ed. 491; D., L. & W. R. Co. v. Price, 137 C. C. A. 406, 221 Fed. 848; C., R. I. & P. R. Co. v. Eddy, 143 C. C. A. 165, 228 Fed. 643. While the legal relation between the plaintiff and the defendant is referable to that of passenger and common carrier, yet the plaintiff, unlike a passenger upon a railroad train, was complete master of his movements and his powers of observation; and, without detracting from the duty of the defendant towards him, it was for the jury to determine what care he should have taken for his own safety under the particular circumstances of the case. That one in such a situation may wholly abandon himself to the care of the railroad should not be laid down as an unvarying, inelastic rule of law. The other matters of which complaint is made may not arise again.

The judgment is reversed, and the cause is remanded for a new trial.

LETTERMAN et al. v. UNITED STATES.

(Circuit Court of Appeals, Third Circuit. December 20, 1917.)

No. 2290..

1. CRIMINAL LAW

1059(2)-TRIAL-CHARGE-PRESENTATION OF OBJECTIONS.

Where defendants below merely noted a general exception to the whole charge, their specifications of error in the charge with reference to specific instructions given and omitted cannot be considered by the Circuit Court of Appeals, for rule 10, § 2, of the Rules of the District Court of the United States for the Eastern District of Pennsylvania, and rule 10, § 1, of Rules of the United States Circuit Court of Appeals for the Third Circuit (224 Fed. vii, 137 C. C. A. vii), both in substance prescribe that judges of the District Court shall not allow any general exception to the whole of the charge to the jury in any criminal or civil trial; but the party shall state distinctly and separately the several matters in such charge to which he excepts and only such matters shall be included in the bill of exceptions and allowed by the court, and the manifest purpose of the rules was to give the trial court opportunity to correct inadvertent errors below.

2. CRIMINAL LAW

1030(1)—APPEAL-REVIEW.

Under court rule 11 for the Circuit Court of Appeals for the Third Circuit (224 Fed. vii, 137 C. C. A. vii), a plain error in a criminal case may be reviewed by the Circuit Court of Appeals on its own motion, without regard to the regularity or irregularity of the proceeding by which it was brought before the court.

In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.

Charles Letterman and Samuel Frank were convicted of conspiring to commit an offense against the United States, by stealing property and money of the United States, in violation of Act March 4, 1909, c. 321, §§ 37, 47, 35 Stat. 1088 (Comp. St. 1916, §§ 10201, 10214), and they bring error. Affirmed.

Henry M. Stevenson, of Philadelphia, Pa., for plaintiffs in error. Francis Fisher Kane, U. S. Atty., and Robert J. Sterrett, Asst. U. S. Atty., both of Philadelphia, Pa.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY, Circuit Judge. The plaintiffs in error (defendants below) were jointly indicted, tried and convicted upon a charge of conspiring to commit an offence against the United States, by stealing money and property of the United States, in violation of sections 37 and 47 of the Act of March 4, 1909, 35 Stat. Pt. 1, p. 1088, c. 321 (Comp. St. 1916, §§ 10201, 10214). The case turned upon the identification of the defendants. Each presented for his own defence an alibi, different from but related in a way to the alibi of the other. In its charge, the court instructed the jury upon the law of alibi as applied to the defences

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

made. The defendants noted a general exception to the whole charge, which was allowed, and now by this writ they specify error in the charge with reference to specific instructions given and omitted. This is a case, therefore, in which the record shows nothing more by way of exception than a general exception to the charge. It is admitted that the matters now complained of were not specifically excepted to at the trial. Nor were they called to the attention of the court at the conclusion of the charge in order that the court might correct them while it had the opportunity, by adding to or amplifying its instructions to the jury.

[1] This situation is met by rules of both the trial court and this court (Rule 10, Section 2 of Rules of the District Court of the United States for the Eastern District of Pennsylvania, and Rule 10, Section 1 of Rules of the United States Circuit Court of Appeals for the Third Circuit, 224 Fed. vii, 137 C. C. A. vii). We recently had occasion to consider these rules at length. Philadelphia & Reading Ry. Co. v. Marland, 239 Fed. 1, 12-16, 152 C. C. A. 51.

The two rules are the same in substance and prescribe in effect, that the judges of the District Courts shall not allow any general exception to the whole of the charge to the jury in a civil or criminal trial; but the party excepting shall state distinctly and separately the several matters in such charge to which he excepts, and only such matters shall be included in the bill of exceptions and allowed by the court. The manifest purpose of these rules is to afford the trial court an opportunity, before the trial closes, to correct errors inadvertently made in its progress, and to insure stability of verdicts by discouraging speculation upon errors observed and not brought to the court's notice and their subsequent use as grounds for reversal on appeal.

The very mischief, which the rules are intended to prevent, is in the record before us. Here there is a charge apparently unexceptionable to which a general exception is perfunctorily made, and thereafter specific errors are complained of without specific exceptions to sustain them. We are therefore of opinion that the plaintiffs in error are without right to prosecute their writ in this court.

[2] As the writ of error in this case is directed to a judgment in a criminal proceeding involving the liberty of the defendants, we hesitate somewhat to dispose of it upon what the parties might conceive to be purely a technical ground. We have, therefore, examined the record for "plain errors," which, if present, would justify us under another rule of this court (Rule 11 [224 Fed. vii, 137 C. C. A. vii]) reviewing the case of our own motion, without regard to the irregularity of the procedure by which it is brought before us. We find no such error. Therefore, the judgment below is

Affirmed.

[ocr errors]

COCA-COLA CO. v. MOORE et al.

(Circuit Court of Appeals, Eighth Circuit. November 7, 1917.)

No. 4905.

1. EVIDENCE

558(1)-EXPERTS-EXAMINATION

CROSS-EXAMINATION.

In an action for legal services in conducting a suit in court, and professional labor, consultations, and advice with respect to it, and two other suits contemplated, but not brought, a witness for plaintiffs was asked his opinion of the reasonable value of the services as a whole, in a hypothetical question which recited them in an exhaustive detail. The witness testified to a gross sum covering all the services mentioned, and defendant was denied the right to have the witness state on cross-examination his opinion as to the separate value of the services connected with the suits not brought. Held that, as ordinarily the right of crossexamination is not confined to specific questions and details of the direct examination, but extends to the subject-matter inquired about, and as an opportunity for cross-examination is especially essential in cases of expert or opinion testimony, the restriction on defendant's right of cross-examination was improper, though it was contended that all the services were rendered under one contract; it being proper, for the purpose of testing the probative weight of the expert's estimate of value, to deal with the services severally.

2. WITNESSES

329-EXAMINATION-CROSS-EXAMINATION-SCOPE.

Any question is proper that fairly tends to test the accuracy of the opinion of a witness or his credibility, and in asking it the cross-examiner is not confined by the precise form or contents of the question or answer in chief.

In Error to the District Court of the United States for the Eastern District of Arkansas; F. A. Youmans, Judge.

Action by J. M. Moore and others against the Coca-Cola Company. There was a judgment for plaintiffs, and defendant brings error. Reversed and remanded.

Elias Gates, of Memphis, Tenn. (Samuel Frauenthal, of Little Rock, Ark., and Gates & Martin, of Memphis, Tenn., on the brief), for plaintiff in error.

J. H. Carmichael, of Little Rock, Ark. (Charles C. Reid, of Little Rock, Ark., on the brief), for defendants in error.

Before HOOK, SMITH, and STONE, Circuit Judges.

HOOK, Circuit Judge. In an action for legal services in conducting a suit in court, and professional labor, consultations, and advice with respect to it and also two other suits contemplated, but not brought, a witness for plaintiffs was asked his opinion of the reasonable value of the services as a whole, in a hypothetical question which recited them in exhaustive detail and assumed them to have been performed. In answer the witness testified to a gross sum covering all the services mentioned. The defendant was denied the right to have the witness state upon cross-examination his opinion of the separate value of the services connected with the suits not brought.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

« SebelumnyaLanjutkan »