SOUTHERN PAC. CO. v. COVEY, 109 F. 416

SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. The controlling question in this case on the trial below was, where did the accident occur? Was the car that struck tiie plaintiff standing on the straight track, or had it been negligently left on the curve near the junction of the two tracks? If it were standing on the curve near the junction of the tracks, the accident could have occurred without the fault of the defendant company; for the cars, in, that event, would collide, although the tracks were properly constructed.

If, however, it occurred with the car standing where the tracks were straight, the moving car would have passed the standing car without collision if the tracks were properly constructed. The learned counsel on both sides recognize this as the dominant question.

Counsel for the plaintiff in error state the question: “In this case it appears that the precise issue presented by the court in its charge was as to whether plaintiff was injured on the straight track or on the curvature, and this record discloses that the jury found in his favor on that issue, without any evidence to support it.” Counsel for the defendant in error state the same question in different words: “Does the uncontradicted evidence show that plaintiff, P. M.

Covey, was injured on the curve of the track at a place where the cars came so close together, by reason of their proximity to the junction of the two tracks, that there was not room to pass, and that that caused his injury, and not any defect in the track?” The charge of the court, the evidence, and these excerpts from the arguments filed here, show clearly the question of fact that the court submitted to the jury. The question of fact is not to be decided by this court.

If the jury erred in the verdict, and if the court erred in refusing to grant the motion for a new trial, there could be no remedy for either error in this court. The jury are the triors of the facts, and the question on the motion for a new trial is in the discretion of the trial court. The sole question here is, did the court err in submitting the question to the jury, was there sufficient evidence tending to sustain the theory of the plaintiff, Oovey, as to the accident, to make it a proper question for submission to the jury?

The contention of the company in this court is that the evidence is uncontradicted that the car stood on the curve, and not on the straight track, when the collision occurred. It is true that there was evidence tending to show that it stood on the curve. But was there none to the contrary? It was proved that a car is from 80 to 40 feet long. Joseph A. McDonald, the company’s yard master, who saw the accident, said that it occurred between two and a half and three car lengths from where tracks Nos. 3 and 4 join. That would be not less than 75 feet from the junction of the tracks.

Ferris, on his first examination, said that it was “30 feet from the frog to the tangent”; and Eugene Olapp said that a car, to be inside of the curve, must have been a shorter distance than 30 feet from the frog. Moore testified that at a distance of from two and a half to three car lengths from the junction of the tracks a car passing on track No. 3 would pass so closely to one standing on track No. 4 that he hardly thought there was room for a man to pass through at the top of the car.

From this evidence the jury, if they believed it, might fairly conclude that the curve did not extend more than 30 feet from the junction of the two tracks, and that the accident occurred not less than 75 feet from the junction, and therefore on the tangent. Covey testified that at a point from two and a half to three car lengths from the junction of the two tracks Nos. 3 and 4 they were 5 feet 11 inches apart; that the inside rail of No. 4 was two and a half inches lower than the outside rail; and that the rail of No. 3 nearest to No. 4 was one inch and a half lower than the outside rail of No. 3.

This construction of the two tracks would make the cars on one track lean towards the cars on the other. The cars were shown to project over the tracks, and to be set “loosely on the trucks.” The cars were evidently so close near the top as to crush and wound the plaintiff, riding on the ladder. If this occurred on the tangent, and not on the curve, it was obviously caused by the improper construction of the tracks. We think the evidence that it did occur on the tangent was sufficient to make it a question for the jury.

Speaking of the verdict, the learned counsel for the plaintiff in error say: “It can only be accounted for on the ground that the jury were either actuated by sympathy for the plaintiff, who -was most seriously injured, or prejudiced against the Southern Pacific Company.

The reports are full of corporation eases in which the opinions of eminent judges, reversing the verdicts of juries on issues of fact, show unmistakably that, in cases whej-o corporations are parties to the suit, the eyes of the jurors are put in eclipse by the huge corporation itself, so that they are unable to see the merits of the case: and, unless the courts will exercise the judicial powers vested in them for wise and beneficent purposes, then the trial of issues of fact before juries in corporation cases will become judicial mockery, and the verdicts of juries ‘as sounding brass and tinkling cymbals.’ ” The trial court may set aside the verdict for proper reasons.

In this case the learned trial judge who heard the evidence thought it sufficient to sustain the verdict. The appellate court, on writ of error, cannot review the verdict of the jury. Although we might believe that we would have found a different verdict, we are not allowed by law to disturb the one found. If the evidence was such as to make it proper to submit the case to the jury, the appellate court has no right to set the verdict aside because the weight of evidence was against it.

We are confined to questions of law, to the consideration of exceptions taken on the trial to the admission and the rejection of evidence, and to the charge of the court and its refusals to give charges. We cannot deal with questions of fact, nor the weight to be given evidence which was properly admitted. Insurance Co. v. Ward, 140 U. S. 76, 91, 11 Sup. Ct. 720, 35 L. Ed. 371. As we think there was evidence sufficient to make it proper to submit the case to the jury, the judgment must be affirmed.