Jackson v. United Railways Co. , 145 Or. 546 ( 1933 )

IN BANC. Action by Otis C. Jackson against the United Railways Company and others. Judgment for plaintiff and from an order setting aside the judgment and verdict and granting a new trial, plaintiff appeals.

AFFIRMED. Plaintiff was employed by defendant, United Railways Company, as a section foreman and by the terms of his employment worked in interstate commerce, maintaining the right of way of defendant. On August 2, 1930, on his way home in the evening, plaintiff discovered a large log, about three feet in diameter and 40 feet long that had fallen from a logging train operated by defendant, lying on the railroad right of way and partially imbedded in the road bed, near the track, in such a position as to endanger the safety of any train being moved along that part of the track. Plaintiff's crew consisted of himself as foreman and four other men. Plaintiff put his crew to work removing the obstruction. It was necessary to raise the log out of its bed to enable the crew, with its limited equipment, to roll it away from the track. To do this, it required the combined efforts of all five men. Under the direction of plaintiff, the men used a piece of timber seven inches by nine inches, 14 feet long, as a pry or lever. In raising the log, it became necessary to put a block under it, and, to do this, Mr. Randall, one of the crew, had to leave the pry. When the man left the pry, it sprung up and injured plaintiff. The negligence relied on by plaintiff is that the man whom he selected to do the blocking carelessly and negligently let go of the pry.

The action was brought under the Federal Employers' Liability Act. Motions for a non-suit and directed verdict were seasonably made by defendant and overruled. The cause was submitted to a jury which returned a verdict in favor of plaintiff. On October 20, 1932, judgment was entered thereon. On October 24, 1932, the trial court, on its own motion, set aside the judgment and verdict, and on October 26, 1932, entered a further order granting a new trial. These proceedings were all had at the same term of court. Plaintiff appeals.

The record presents two questions: (1) Did the court err in making the orders, upon its own motion, setting aside the judgment and granting a new trial? (2) Assuming that the court had such authority, did it abuse its discretion in so doing?

Appellant contends that the court had no authority or discretion to set aside a judgment on its own motion, except within the time allowed by statute for the filing of a motion for a new trial.

"A motion to set aside a judgment and for a new trial, with the affidavits, if any, in support thereof, shall be filed within one day after the entry of the judgment sought to be set aside, or such further time as the court may allow. * * *" Oregon Code 1930, § 2-803.

"It is well settled that all the judgments, decrees or other orders of courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and that they may then be set aside, vacated, or annulled by that court." 15 R.C.L. § 143, p. 690. Deering v. Quivey, 26 Or. 556 (38 P. 710); Ayres v. Lund, 49 Or. 303 (89 P. 806, 124 Am. St. Rep. 1046); Zelig v. Blue Point Oyster Co., 61 Or. 535 (113 P. 852, 122 P. 756); First Christian Church v. Robb, 69 Or. 283 (138 P. 856); Finch v. Pac. Reduction Co., 113 Or. 670 (234 P. 296); Hudelson v. Sanders-Swafford Co., 111 Or. 600 (227 P. 310).

Counsel for appellant contends that, assuming the authority of the court in its discretion to set aside a judgment during the term, in the instant case it was an abuse of its discretion to do so.

"``When, on the trial of the issues of fact in an action at law before a federal court and a jury, the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, so that such a verdict, if returned, would have to be set aside, the court may and should direct a verdict for the other party' * * * A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule ``that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.' Improvement Company v. Munson, 14 Wall. 442, 448. Pleasants v. Fant, 22 Wall. 116, 122." Gunning v. Cooley, 281 U.S. 90 (505 S. Ct. 231,74 L. Ed. 720).

In cases brought under the Federal Employers' Liability Act, this court is governed by the decisions of the United States courts. Adskim v. O.W.R. N. Co., 129 Or. 169 (276 P. 1094).

To remove the obstruction from the track, it was necessary to raise the log up out of its bed. This was accomplished by three operations. On the first, the lifting end of the pry was placed under the log and the other end brought down and depressed, by the combined efforts of the whole crew, until it was about "between the knees and the waist", and a block placed under the log to hold it to the position to which it was raised. The pry was then released and reset, evidently on a higher fulcrum, and again the men pressed down on the pry to the same extent as on the first operation, raising the log further up out of its bed and another block was placed under it to hold it up to the position attained. Again the pry was reset and when it was pressed down to the same extent as on the first two operations, Mr. Randall again left the pry to reset the block under the log to hold it up to where it had been raised. This is the time that plaintiff claimed the pry sprang up, upon Mr. Randall leaving it, and injured him.

The plaintiff testified: "I also had instructed the man before we started, to put the piece or check, whatever it was we had, under the log when we raised it up." The evidence does not disclose what further signal or order, if any, was given to Mr. Randall as to when to place the block other than it was to be done "when we raised the log up".

Plaintiff further testified that on the third operation when the pry was pressed down to about the same extent as on the two former lifts, he said to the crew, "Hold her a minute"; that it was his intention to press it down as far as possible. There is no evidence that he informed Mr. Randall of that intention or that Mr. Randall knew that any different method was to be adopted than those exercised on the first two lifts. In placing the men on the pry, Mr. Randall was nearest the log and the plaintiff farthest away. Plaintiff further testified: "Q. What was the idea of saying ``hold her'; what did you want it to be held for? A. We wanted to get a different position to get more strength on to it. Q. What happened then? A. The man evidently thought I meant to block her and let loose." Plaintiff admits that it was a mistake in judgment on the part of his co-servant, Randall.

Being controlled by the decisions of the United States courts in these actions, the trial court was right in granting a new trial. The cause having been submitted to a jury, we have no authority to "arrogate to ourselves power we do not possess" to deprive the plaintiff of a trial by jury. Johnson v. Ladd,144 Or. 268 (24 P.2d 17); Slocum v. New York Life, 228 U.S. 364 (33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029); Pederson v.Delaware Etc. R. Co., 229 U.S. 146 (33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153).

The United States Court of Appeals, pursuant to state court practice of the state of Pennsylvania, reversed a judgment for personal injuries and remanded the cause with directions to enter a judgment notwithstanding the verdict. The United States Supreme Court, in passing upon the question, said:

"We shall not undertake to analyze the evidence or review the grounds which led the court below to conclude that error was committed in submitting the case to the jury, because we think it is adequate to say that after a careful examination of the record, we see no reason for holding that the court below erred in so holding. As regards, however, the ruling on the motion for judgment non obstante veredicto, it is apparent, in view of the recent decision in Slocum v. Insurance Co., 228 U.S. 364, that error was committed. It follows that our duty is * * * to affirm the judgment of reversal and to modify by reversing so much of the action of the court below as directed a judgment in favor of the defendant." Young etc. v. Central Railroad Company of New Jersey, 232 U.S. 602 (34 S. Ct. 451, 58 L. Ed. 750).

From an examination of the whole record, we cannot say, as a matter of law, that the trial court committed error in granting a new trial.

The judgment of the circuit court is affirmed.