Mexican Cent. Ry. Co. v. Henderson

McCORMICK, Circuit Judge, after stating the case as above, delivered the opinion of the court. 'Fhe plaintiff in error assigns seven grounds on which it asks a reversal of the judgment of the circuit court. We deem it necessary to notice only two, — the third and fourth, as numbered in the assignment. The first of these submits that the court erred in refusing the first requested charge, namely, “The defendant asks the court to charge the jury to find a verdict for the defendant herein.” The other is, “The court erred in refusing the second requested charge.” It is shown in the statement of the case. The distinguished and able counsel who have submitted a brief on behalf of the plaintiff in error have argued these assignments together, and treated them as practically equivalent to each other; that is to say, in their argument they consider their second request for instructions as, in substance, a request to withdraw the case from the consideration of the jury, and to direct, peremptorily, a verdict for the defendant. The explanation given by the trial judge of his action in refusing the second of the requested charges seems to indicate that he was of opinion that this charge would practically withdraw the case from the jury. We have very carefully examined the cases to which the trial judge refers, namely, Railroad Co. v. Nordell (Tex. Civ. App.) 50 S. W. 601, Railroad Co. v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, 36 L. Ed. 596, Railroad Co. v. Babcock, 154 U. S. 199, 14 Sup. Ct. 978, 38 L. Ed. 958, and agree with him that these cases hold, under similar circumstances to those presented by the instant case, that the case was one for the jury. But we cannot concur in the suggestions of counsel for the plaintiff in error, or in the view which appears, by implication at least, to have been taken by the trial judge as to the character and effect of the second request. It does not seem to us to withdraw from the jury the question that was vita! on the trial, but, in our opinion, expressly and correctly submits it to the jury. Let us examine it. Its language is; “You are charged that if you believe from the evidence that it was the duty of the plaintiff to inspect his engine before starting out on the road; that he did not make such inspection; that, had he made such Inspection, as it was his duty to do, he could and would have discovered the defect in the step, and have avoided Lhc injury; and that by reason of plaintiff’s failure to make such inspection and discover said defect he was injured by said defective step. — you will find for defendant.” The insistence of counsel for the plaintiff in error is that the testimony of the defendant in error shut the jury up to the one conclusion, — that, under the circumstances in this case, the defendant in error owed the duty to himself and to his employer to make a different inspection from the one which his proof shows him to have made, and that it concludes him, as an admission made as a witness on the stand, that he did not make such an inspection a.s was his duty, under the circumstances, to make before taking out the en [896] gine. If the matter had been submitted to them under this requested charge, the jury might have so considered the plaintiff’s testimony. But it can hardly be claimed that, on a consideration of the whole testimony given by the defendant in error, no reasonable mind could reach a different conclusion, or that the evidence is such that the trial judge must have thought it to be his duty to award a new trial in case the jury had reached a different conclusion, and returned a verdict for the plaintiff. The only defect in the engine involved in this inquiry was the broken step. The plaintiff’s testimony shows that he, while operating this engine, prior to reaching Cardenas on August 19th, had discovered this defect; that Cardenas was the place where such defects were to be repaired; that in the due and regular discharge of his duty he gave notice thereof, in the manner required by the rules and practice of the company, to the agent of the company, whose duty it was to have the defect corrected and the step properly repaired; that, in the regular discharge of his duty, and according to the ordinary and well-known practice in the shops of the plaintiff in error at Cardenas, he did, before starting out on the trip on which he was injured, look at the work book, to see if the defects which his inspection had discovered, and which he had reported, had been repaired, and that he thereby discovered, from.the marks designed to show the fact to him, that the work had been done and the needed repairs made. In answer to a categorical question the plaintiff did, indeed, say: “The duty of the engineer is to look at his engine, oil her up, and get ready for the trip. It is his duty to look over it, and see that it is in proper condition, and to see that everything is all right.” But this does not at all indicate that the plaintiff, as engineer, was under any rule of duty not applicable in railroad operation to other locomotive engineers, or other than was binding on^Nordell and on Munro, the engineers, respectively, in the Nordell and in the Babcock Cases, supra. The jury had the witness before them. His testimony was expressed to them, not alone in the arbitrary characters which constitute the words he used, but also by his manner in their use. Whatever may be the fact, it does not unquestionably appear on the surface of the language in which .his testimony is reported to us that he thought, or that he intended to admit, or believed that he was admitting, that he had not done, on the morning he started out with his engine, all that his duty as an engineer and the rules and practice of the company required him to do to satisfy himself that the step in question was in condition for use. We think the requested charge submits to the jury what the authority of the cases cited by the learned trial judge requires should have been submitted to them; that its tenor and effect was not to withdraw the case from,them, and to direct a verdict for the defendant; and that it correctly states the law to be that, if they find from the proof that the plaintiff did not make such inspection of his engine as it was his duty to do, they must find a verdict for the defendant. It follows that for the error in refusing the second requested charge the judgment of the circuit court must be reversed. As we have already said, we do not deem it necessary to consider now the [897] other matters suggested in the assignment of errors, as the questions presented may not arise on another trial. The judgment of the circuit court is reversed, and the cause is remanded to that court with direction to award the defendant a new trial.