Louisville & N. R. v. Roberts

DAYTON, District Judge (after stating the facts as above). In the view which we take of this case it becomes wholly unnecessary for us to consider in detail the numerous assignments of error. It is sufficient for us to say that, in the federal practice, it is well settled that it is the duty of the trial court to direct a verdict when the evidence is undisputed, or is of such a conclusive character that the court would, in the exercise of a sound judicial discretion, be compelled to set aside a verdict rendered in opposition to it. Travelers’ Ins. Co. v. Selden, 24 C. C. A. (Fourth Circuit) 92, 78 Fed. 285 ; Washington Mills v. Cox, 85 C. C. A. (Fourth Circuit) 154, 157 Fed. 634 . Or, as differently expressed, but to the same purpose, where the facts are such that *924 all reasonable men must draw the same conclusion from them, the question of negligence is one of law — for the court. Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 , 12 Sup. Ct. 679, 36 L. Ed. 485 ; Richmond & Danville R. R. Co. v. Powers, 149 U. S. 43 , 13 Sup. Ct. 748, 37 L. Ed. 642 ; Southern Ry. Co. v. Carroll, 71 C. C. A. (Fourth Circuit) 88, 138 Fed. 638 ; Sealey v. Southern Ry. Co., 81 C. C. A. (Fourth Circuit) 282, 151 Fed. 736 . The’learned judge presiding at the trial charged the jury that Lindsay was a fellow servant of deceased, that the company was not liable for the negligence involved in the manner in which he directed said trench to be dug, and he confined the issue solely to paragraph 5 of the complaint, as amended, charging the negligent running of trains over the fill as the direct and proximate cause of the injury and death. To this ruling and charge, no exception was taken, and no cross-error is assigned by plaintiff. The defendant" introduced no testimony, and it is itndisputed that deceased, with others, was engaged in digging this trench, at the time of the cave-in, on the side of the fill along which the county road ran, and he was in the trench at a point near where the center of the road was, when the earth from the top, on one side, caved in from this road and injured him. It is also undisputed that the company had run an engine several times and one freight train over its track on this fill in the forenoon; that the men at work including deceased had been warned of such passages of the engine and train, and each time had gotten out of the trench; that at about 11:30 a. m. they knocked off for dinner, returning to work about 12:30 p. m. when deceased entered the trench and in a few minutes after the cave-in occurred; that the earth did not cave in from under the railroad track, but from the side of the trench out of the county road; that a small crack in the earth at this point had been noticed and called to the attention of Lindsay and others by one of the men immediately after the return from dinner; that no train or engine was crossing the fill, or had crossed for some time before the cave-in. It will be perceived that there is absolutely no direct evidence that the running of the engine and train over this fill caused this cave-in from the county road, but that, to sustain this judgment, we must hold it to be a case of res ipsa loquitur, of the act itself necessarily being negligent, and the direct and proximate cause of the decedent’s injury, instead of other causes reasonably accounting- therefor, such as his' own act of digging in the trench under the direction of his fellow servant, which we think from the evidence was the fact. The motion to direct a verdict for defendant should have been sustained. The judgment will therefore be reversed and the case remanded. Reversed.