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

With the view expressed in the decision of the majority that the judgments, decrees and orders of any court of general jurisdiction, however conclusive in character they may be, are under the control of the court which pronounced them during the term in which they were rendered, and that they may be set aside, vacated or amended by that court within that term, I am in accord. But the power to which reference has just been made is not an unlimited one. It must be exercised with legal discretion that carries into effect the general policy of the law. The power is, therefore, subject to restraint and its exercise is subject to review. If, upon appeal, it is impossible to find any reason, cognizable by our system of jurisprudence, for the support of the vacating order, the order will be set aside. Let us remind ourselves that the vacated judgment with which we are now confronted was entered upon the verdict of a jury. Before proceeding further it may be helpful to review briefly the legal principle governing, in the absence of statute, the power of a court to vacate its judgment, decree or order. The power is thus defined in Ayers v. Lund, 49 Or. 303 (89 P. 806, 124 Am. St. Rep. 1046):

"The proceedings of the court remain in the breast of the judge until the close of the term, during which time the court has inherent right to correct, modify or vacate its decree, and its action in such a case will not be disturbed on appeal except for an abuse of discretion."

From Kentz v. Kentz, 209 S.W. 200, the following is taken:

"This power extends not only to matters of clerical mistake, but the court, if it concludes that a mistake as to the rights of the parties has been committed, may vacate the judgment rendered and render such judgment in its stead as he may conclude is proper, provided, of course, that the intervention of the jury is not necessary and it does not involve the entry of a judgment against the verdict of the jury."

In Miocene Ditch Co. v. Moore, 150 Fed. 483, Judge Ross, delivering the decision of the Circuit Court of Appeals of this district, said:

"The term of the court at which the decree was vacated by the order in question not having then expired, there can, we think, be no doubt of the inherent power of the court to set it aside on motion, if the facts justified such action, by which is, of course, meant not the exercise of an arbitrary power, but a power based upon good and sufficient reason."

Mr. Justice Field, when Chief Justice of the California Supreme Court, in Duff v. Fisher, 15 Cal. 375, thus defined the common-law power of a court to set aside a judgment based upon the verdict of a jury:

"It may be, and probably is true, that the court, whether sitting in equity or on trial of a common-law action, may of its own motion set aside the verdict of a jury when it is clearly and palpably against the evidence; but when the court is satisfied with the verdict the parties can only question its correctness by following the course pointed out by the statute."

The painstaking editor of Cyclopedia of Federal Procedure, in section 1480, thus expresses the power which a federal judge possesses to set aside a judgment based upon a verdict which he believes is unwarranted by the evidence:

"It is within the power of the court to set aside a verdict not warranted by the evidence. In the exercise of this function the court weighs the evidence in a manner which might not be proper on a motion to direct a verdict, although this rule must be considered in view of the power in federal courts to direct a verdict where if a contrary one should be rendered on the evidence the court would have to set it aside. * * * The rule seems to be that where the evidence offered for the party for whom a verdict is rendered, conceding to it the greatest probative force to which it is fairly entitled under the laws of evidence, is insufficient to support or justify the verdict, it is the duty of the court to set it aside and grant a new trial. But if the verdict is supported by substantial evidence, or based upon conflicting evidence from which different inferences might be drawn leaving the court doubtful, it will not ordinarily be disturbed. It is not a sufficient ground for a new trial that the verdict is merely against the preponderance of the testimony, or that the court might have arrived at a different result, but the verdict must be manifestly and palpably against the evidence in the case. In other words, the verdict will be allowed to stand unless the other party is entitled to judgment as a matter of law."

The defendants concede that the vacating order can not be sustained unless an irregularity in the record can be detected. The following is quoted from their brief:

"Points and Authorities. 1. If error occurs at the trial of such a nature that a judgment would be reversed on appeal, the trial court has authority to set aside the judgment and order a new trial."

The defendants do not claim in their brief any irregularity in the formulation of the pleadings, in the impaneling or conduct of the jury, in the reception of the evidence, in the conduct of counsel or in the instructions to the jury.

The manner in which the injury befell the plaintiff is free from dispute. Only four witnesses, including the plaintiff, testified upon this phase of the case. All four of them were members of the section crew. Three of these witnesses were called by the defendants, but gave testimony which in no detail contradicted the testimony of the plaintiff. In fact, the defendants' brief nowhere criticizes any utterance of these four witnesses as untrue. Thus, the uncontradicted and unquestioned evidence reveals the situation described in the decision of the majority — with a single exception: The majority decision states: "Plaintiff admits that it was a mistake in judgment on the part of his co-servant Randall." The portion of the testimony upon which the majority evidently relies as foundation for that statement follows a lengthy answer made by the plaintiff wherein he said that Randall let go of the pry just after he (the plaintiff) called out: "Hold her a minute; hold her a minute." He had testified that by this command he intended that the crew should not release their pressure upon the pry, but, by keeping the pry in its position, afford him an opportunity to change his grip. He was then asked: "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. Q. So you could do what? A. So I could get a different position to get more strength onto it. Q. What happened then? A. The man evidently thought I meant to block it, and he let loose." Manifestly, the witness could not know the thoughts which were in Randall's mind. But apparently the majority rely upon the answer to the last question above quoted as the foundation for their statement that Randall had made a mistake in judgment. They do not say that this supposed mistake justified the vacating order of the circuit court. It is manifest that if this answer indicated that Randall had erred in judgment the plaintiff was still entitled to have the jury determine whether the error was a negligent one.

In seeking to uphold the action of the circuit court in setting aside its judgment the defendants contend — and this is the only contention which they advance — that the circuit court erred when it denied their motions for a nonsuit and for a directed verdict. In support of this contention, the defendants advance two specific arguments of which note will now be taken. In the first of these they argue that when the plaintiff called out his command, "Hold her a minute; hold her a minute" that he gave "ambiguous instructions" and "could not recover for injury resulting from actions of a subordinate employee who has failed to interpret correctly the orders." If, by chance, any one could say that the command just quoted was ambiguous, surely he will concede that the issue as to its character was a question of fact for the jury's determination. The second argument is: "A workman who takes a dangerous position without warning or notice to fellow workmen can not recover for injuries resulting from customary operations by other workmen." There is not one syllable of testimony which indicates that the plaintiff changed his position prior to being injured. The uncontradicted testimony shows that the plaintiff was in the same position at the time of his injury as he had occupied previously; that is, out at the end of the pry. He merely sought a chance to change his grip. Thus, disposition is made of every contention advanced in support of the vacating order.

The defendants concede that the fellow-servant rule has no application to actions brought under the Federal Employers' Liability Act. They also concede that contributory negligence, if any is present, merely mitigates damages. Assumption of risk is neither argued by the defendants, nor is it available as a defense. The distinction between foremen and others is not found in the Federal Employers' Liability Act. The sole issue in the case is whether the evidence shows that Randall's unannounced act in suddenly releasing his weight from the pry and thereby permitting it to fly upward was negligent. If it was, the judgment should not have been vacated. If the defendants' witness, who himself branded Randall's act as dangerous, is to be believed, the verdict is sustained by direct proof produced by the defendants. The issue determined by the jury was a simple one. There was no conflict in the testimony that needed reconciliation. It was not necessary to weigh the evidence and seek for hidden, cleverly-concealed motives because most of the testimony came from witnesses for whose veracity the defendants vouched. Thus, the jury was relieved from making the difficult search for the truth which in most cases is the most perplexing duty which confronts it. There was for solution only the question whether Randall's act was a negligent one. It was a simple, commonplace question. Almost every one has helped or observed a group lift a bulky object, possibly by the aid of a pry, and has learned from experience or observation whether the unheralded act of one who suddenly releases his grip, imperiling the others, is a negligent act. It is common knowledge that all workmen condemn an act such as Randall's in no uncertain language. Randall did not testify, and, hence, we have no explanation from him. The defendants concede that the authorities agree that if one member of a crew of workmen, who are working in concert and who have agreed that no one of them shall act except upon signal from a superior, suddenly acts without waiting for the signal and thereby causes an injury to befall another member of the crew, the premature act may constitute negligence, imposing liability upon the employer. It is my belief that the application of this rule to the facts disclosed by the evidence sustains the verdict and that, since nothing can be found which constitutes justification for the vacating order, the circuit court erred when it entered the latter. I, therefore, dissent.

BEAN, J., concurs in this dissent.