Lapas attēli
PDF
ePub

suit was commenced upon the same cause of action that the plaintiffs' now writ and action are founded; that the said action, so commenced as aforesaid, was duly prosecuted by plaintiffs until the first of September, 1877, upon which day a judgment (which said judgment remaining of record in this court is referred to) was therein rendered by said circuit court upon a ground not concluding their said right of action. The record of said former suit remains in this court, and plaintiffs here make profert of the same; all of which plaintiffs are willing to certify."

The defendants demurred to this replication on two grounds: First, because it appeared, by the judgment referred to and made a part of the replication, that said judgment was upon the merits; and, second, because it appeared from the record of said former suit that the court in which it was brought had no jurisdiction thereof, and said suit was dismissed for want of jurisdiction. The cause was heard upon this demurrer, which the court sustained, and entered judgment dismissing plaintiffs' suit. To reverse that judgment this writ of error is prosecuted.

D. E. Myers, W. M. Sneed, S. P. Walker, S. Shellabarger, and J. M. Wilson, for plaintiffs in error.

P. Phillips and W. Hallett Phillips, for defendants in error. *WOODS, J. The question presented by the record is the sufficiency of the plaintiffs' replication to the defendants' plea of the sevenyears' statute of limitation. The limitation relied on by defendants is that prescribed by article 2765 of the Code of Tennessee, which is as follows:

"No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, etc., but within seven years after the right of action has accrued."

The plaintiffs in error contend that their present action is saved from the bar of this statute by the provision of article 2755 of the Code, which is as follows:

"If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or when the judgment or decree is rendered in favor of the plaintiff and is arrested or reversed on appeal, the plaintiff or his representatives or privies may commence a new action within one year after the reversal in arrest."

The question of law upon which the parties are at issue is whether the judgment rendered February 24, 1877, by which the suit begun December 31, 1873, was dismissed, the dismissal being on the ground that the court had no jurisdiction of the cause of action set out in the declaration, falls within the saving of this section as being rendered on a ground not concluding the plaintiffs' right of action. It is well settled that the judgment of a court dismissing a suit for want of jurisdiction does not conclude the plaintiffs' right of action.

In Walden v. Bodley, 14 Pet. 156, it was said by this court: "A decree dismissing a bill generally may be set up in bar of a second bill having the same object in view, but when the bill has been dismissed on

$430

the ground that the court had no jurisdiction, which shows that the merits were not heard, the dismissal is not a bar to the second suit."

So in the case of Hughes v. U. S. 4 Wall. 232, this court declared: "In order that a judgment may constitute a bar to another suit it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit." See also, Greenl. Ev. §§ 529, 530, and cases there cited.

These cases would seem to settle the question against defendants in error, for they decide that the dismissal of a suit for want of jurisdiction is upon a ground not concluding the right of action. Defendants in error, however, contend that the bringing of a suit in a court having no jurisdiction thereof was gross negligence, and that the current of authority is against extending the terms of the statute to let in one guilty of it. Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace. But the suit between these parties, which was begun December 31, 1873, is far from being such a case. There is nothing in the record to show that it was dismissed for any inherent want of jurisdiction in the court in which it was brought. We think that on December 31, 1873, when said first suit was brought, the circuit courts of the United States, under the second section of the act of congress of March 3, 1833, entitled "An act further to provide for the collection of duties on imports," (4 St. 632,) had jurisdiction of a suit brought to recover lands purchased at a sale for taxes made under authority of the act of June 7, 1862, for the collection of taxes in insurrectionary districts, where the title so derived was disputed by defendants. The defect was in the declaration, which, although it averred that plaintiffs claimed title under the revenue laws of the United States, did not aver that their title in that respect was disputed by defendants. Had such an averment been made, the jurisdiction of the court would have appeared on the face of the declaration. Ex parte Smith, 94 U. S. 455. The first suit was therefore dismissed, because the declaration did not state. the jurisdictional facts upon which the right of the court to entertain the suit was brought. In other words, the case was dismissed for a defect in pleading. In the present suit the defect of the declaration in the first suit is supplied. We are of opinion, therefore, that the plaintiffs in error are entitled to the benefit of article 2755 of the Code of Tennessee, for their judgment in the first suit was not upon any ground concluding their right of action, nor have they been guilty of

such negligence or carelessness in the bringing of their first suit as should exclude them from the benefit of the said article. In support of the proposition that plaintiffs in error have not been guilty of such negligence as should exclude them from the benefit of article 2755, the case of Cole v. Mayor, etc., 5 Cold. (Tenn.) 639, is much in point. See, also, Memphis & C. R. Co. v. Pillow, 9 Heisk. (Tenn.) 248; Weathersly v. Weathersly, 31 Miss. 662; Woods v. Houghton, 1 Gray, 580; Coffin v. Cuttle, 16 Pick. 386; Givens v. Robbins, 11 Ala. 156, Skillington v. Allison, 2 Hawks, (N. C.) 347; Lansdale v. Cox, 7 J. J. Marsh. 394; Phelps v. Wood, 9 Vt. 404; Spear v. Newell, 13 Vt. 288; Mathews v. Philips, 2 Salk. 425; Kinsey v. Hayward, 1 Ld. Raym. 434.

The judgment of the circuit court must be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.

(109 U. S. 478)

RANDALL V. BALTIMORE & O. R. Co.

(December 10, 1883.)

DIRECTING VERDICT-NEGLIGENCE OF RAILROAD CORPORATION-FAILURE TO SOUND WHISTLE OR RING BELL-PERSONAL INJURY-FELLOW-SERVANT. When the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court may direet a verdict for the defendant.

A ground switch, of a form in common use, was placed in a railroad yard, in a space six feet wide between two tracks; the lock of the switch was in the middle of the space; and the handle, when lying flat, extended to within a foot of the adjacent rail, and could be safely and effectively worked by standing in the middle opposite the lock, using reasonable care. The brakeman of a train on one of the tracks, while working at the switch, standing at the end of the handle, was struck by an engine on the other track. Held, that there was no such proof of fault on the part of the railroad corporation, in the construction and arrangement of the switch, as would support an action against it for the injury.

A brakeman, working a switch for his train on one track in a railroad yard, is a fellow-servant with the engineman of another train of the same corporation upon an adjacent track, and cannot maintain an action against the corporation for an injury caused by the negligence of the engineman in driving his engine too fast, and not giving due notice of its approach, without proving negligence of the corporation in employing an unfit engineman.

A statute which provides that a bell or whistle shall be placed on every locomotive engine, and shall be rung or sounded by the engineman or fireman 60 rods from any highway crossing, and until the highway is reached, and that the "corporation owning the railroad shall be liable to any person injured for all damages sustained" by reason of neglect so to do, does not make the corporation liable for an injury, caused by negligence of the engineman or fireman in this respect, to a fellow-servant.

In Error to the Circuit Court of the United States for the District of West Virginia.

*479

B. B. Dovener, for plaintiff in error.

John K. Cowen and C. Boggess, for defendant in error.

GRAY, J. This is an action against a railroad corporation, by a brakeman in its employ, for personal injuries received, while working a switch, by being struck by one of its locomotive engines. The declaration, in seven different counts, alleged as grounds of action that the defendant negligently constructed and kept its tracks and switches in a defective and dangerous condition; that the defendant, by one of its agents and servants, who was at the time unskillful, negligent, and unfit to perform the business and employment that he was engaged by the defendant to perform, and who was engaged in a service for the defendant other and different from the service in which the plaintiff was engaged, and whose negligence, unskillfulness, and unfitness were known to the defendant, negligently propelled one of its locomotive engines against and over the plaintiff; that this was done without sounding any whistle or ringing any bell, as required by the laws of the state of West Virginia; and that the defendant neglected proper precautions in the selection and employment of its agents and servants. A statute of West Virginia provides that "a bell or steam-whistle shall be placed on each locomotive engine, which shall be rung or whistled by the engineer or fireman at the distance of at least sixty rods from the place where the railroad crosses any public street or highway, and be kept ringing or whistling until such street or highway is reached," under a penalty of not exceeding $100 for each neglect; and that "the corporation owning the railroad shall be liable to any person injured for all damages sustained by reason of such neglect." St. W. Va. 1873, c. 88, § 31.

As we understand the evidence introduced at the trial, it conclusively proved the following facts: The injury occurred at night, at a place where, as the plaintiff himself testified, "there was one network of tracks," in the defendant's railroad yard, near the junction of a branch road with the main road, and about 10 rods from a highway crossing. The plaintiff had previously been employed on another part of the road. On the night in question, in the performance of his duty as a brakeman on a freight train, he unlocked a switch which enabled his train to pass from one track to another; and he was stooping down, with his lantern on the ground beside him, to unlock the ball of a second switch to let the engine of his train pass to a third track, when he was struck and injured by the tender of another freight engine, in no way connected with his train, backing down on the second track. The tender projected 10 inches beyond the rail. The distance between the adjacent rails of the second and third tracks was about six feet. The second switch was a ground switch of a kind in common use, the lock of which was in the center of the space between the two tracks; and the handle of which was about two feet long, and when lying flat extended towards

either track, and when thrown one way opened the switch, and when thrown the other way closed it. The switch could be worked efficiently and safely by a man standing midway between the two tracks, using reasonable care. It could not be safely worked by standing at the end of the handle while an engine was coming on the track next that end. Upright switches could not be used, at a place where the tracks were so near together, without seriously interfering with the moving and management of the trains. The plaintiff testified that he had never worked a ground switch before, and that the first switch was an upright switch. But he admitted on crossexamination that the two kinds of switches were unlocked in the same manner, and the other evidence established beyond doubt that the first switch was also a ground switch. A single witness, who had been a brakeman, called for the plaintiff, in answer to a question, often repeated, of his counsel, whether that was a safe and proper switch to be used at that point, testified that he could not say it was a very safe place at that time there; that he thought that was not a proper kind of switch, and an upright switch would have been more convenient to handle; that he did not think it was a very safe ball there; that he thought it was not a safe ball there; and that it could not be unlocked without danger while an engine or train was coming upon the other track. The engine which struck the plaintiff was being driven at a speed of about 12 miles an hour, by an engineman in the defendant's employ, and there was evidence tending to show that it had no light except the head-light, and no bell, and that its whistle was not sounded. There was no evidence that the tracks were improperly constructed, or that the engineman was unfit for his duty. The other grounds of action relied on were, improper construction and arrangement of the switch; negligence of the defendant in running its engine, by an unskillful and negligent engineman, alleged to have been engaged in a different service for the defendant from that in which the plaintiff was engaged; and omission to comply with the requirements of the statute of West Virginia. At the close of the whole evidence (of which all that is material is above stated) the court directed the jury to return a verdict for the defendant, because the evidence was such that if a verdict should be returned for the plaintiff the court would be compelled to set it aside. A verdict for the defendant was accordingly returned, and the plaintiff sued out this writ of error.

1. It is the settled law of this court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so tnat such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant, 22 Wall. 116; Herbert v. Butler, 97 C. S. 319; Bowditch v. Boston, 101 U. S. 16; Griggs v. Houston, 104

« iepriekšējāTurpināt »