Fidelity Title & Trust Co. v. Dubois Electric Co.
1920 U.S. LEXIS 1413 · 253 U.S. 212 · 40 S. Ct. 514 · 64 L. Ed. 865
June 1, 1920 · Docket 300
Headnotes
Generated summaries- Headnote 1
The defendant erected the banner, substituted his own cable when the rope broke, and repeatedly handled the banner without anyone else’s involvement. The Court found that control remained with the defendant and that liability depended on whether he had assumed a continuing duty to keep the banner safe.
- Headnote 2
The original complaint alleged negligence in the use of the chimney. The later amendment merely stated that the defendant had also maintained the banner. The Court held that the amendment left the underlying cause of action unchanged and therefore was not barred by the statute of limitations.
- Headnote 3
The Court noted that the Circuit Court’s reversal of the judgment without ordering a new trial was improper because the jury’s finding on duty was based on conflicting evidence. Citing prior authority, the Court held that an appellate court must defer to the jury absent a legal insufficiency of the evidence.
- Headnote 4
Facts show the defendant erected the banner, substituted his own cable after the rope broke, and repeatedly handled the banner without directing others. The Court held that because the defendant kept control and knew the hazard, he retained a duty to maintain the banner safely, and the jury’s verdict was therefore supported.
- Headnote 5
The plaintiff’s original complaint alleged negligence in the use of the chimney. The later amendment added that the defendant maintained the banner but left the claim of negligence unchanged. The Court held that because the amendment only clarified the factual basis of the same claim and was filed before the limitations period expired, it was not barred.
- Headnote 6
The Court noted that the evidence was conflicted but, viewing it in the light most favorable to the plaintiff, a reasonable jury could find negligence. Citing precedents, the Court held that appellate reversal is improper where the jury’s factual finding is supported; instead the case should be sent back for a new trial.
- Headnote 7
The defendant installed a political banner, substituted a wire cable after the original rope broke, and continued to handle the banner whenever needed. No one else touched it, and the record shows the defendant retained control. The jury could find, if it believed the plaintiff’s evidence, that this control created a duty of care.
- Headnote 8
The court noted that a man is not free to introduce a danger into public places absent a contract with those exposed, and that evidence of negligence established a duty notwithstanding any lack of contract between the defendant and the injured passers‑by.
- Headnote 9
The original declaration alleged negligence in the use of the chimney; the amendment added that the defendant maintained the banner. The court held the amendment left the underlying cause of action unchanged and, because it was filed before the statutory period expired, it was not barred.
- Headnote 10
The Circuit Court of Appeals reversed the jury’s verdict without ordering a new trial. The Supreme Court observed that the record showed conflicting evidence and that, if the plaintiff’s evidence were believed, a jury could find a duty. Under the evidence‑in‑favor test, the appellate court must remit for retrial, not reverse outright.
- Headnote 11
In this case the defendant erected a political banner, substituted his own cable after the original rope broke, and repeatedly handled the banner without direction, showing continued control. The Court held that such control creates a continuing duty to maintain the device safely.
- Headnote 12
The plaintiff’s amended declaration added that the defendant maintained the banner. The Court found the original pleading sufficient and held the amendment left the cause of action unchanged, therefore the amendment was not barred by the statute of limitations.
- Headnote 13
The Circuit Court reversed the judgment without ordering a new trial. Citing Slocum and Myers, the Supreme Court explained that appellate courts must defer to the jury’s fact‑finding unless the evidence is legally insufficient, and therefore must remand for a new trial rather than reverse.
- Headnote 14
The defendant was asked to hang a political banner, installed it, later replaced a broken rope with his own wire cable, and repeatedly handled the banner without any other party’s involvement. A brick dislodged from the chimney and struck a passer‑by, raising the question of the defendant’s duty after installation.
- Headnote 15
The plaintiff’s original pleading alleged negligence in the use of the chimney. The later amendment added that the defendant also maintained the banner. The court held that the amendment merely clarified the factual basis of the same negligence claim and therefore did not toll the statute of limitations.
- Headnote 16
The appellate court had reversed the jury’s verdict on the duty issue despite conflicting evidence. The Supreme Court held that because the duty question is factual, the evidence was sufficient to allow a jury finding, and the correct appellate action is to remand for a new trial rather than a direct reversal.
- Headnote 17
The Court observed that the defendant continued to handle the banner and its supporting cable, retaining control after installation, and therefore could not escape liability to pedestrians even though no contractual relationship existed with them.
- Headnote 18
The amendment introduced a factual claim of maintenance without altering the underlying negligence claim; because the original pleading’s statute‑of‑limitations period had not expired, the amendment was considered timely.
- Headnote 19
Citing Slocum and Myers, the Court held that appellate courts must defer to the jury’s fact‑finding unless the evidence is legally insufficient, and therefore reversing the verdict without ordering a new trial was improper.
Opinion
delivered the opinion of the court.
This is an action begun by Pancoast, to recover for personal injuries, and continued after his death by the petitioner as ancillary administrator. At a former trial the plaintiff had a verdict but it was set aside and a new trial ordered by the Circuit Court of Appeals. 238 Fed. Rep. 129, 132. 151 C. C. A. 205. At the new trial the plaintiff again got a verdict and judgment, but the Circuit Court of Appeals set them aside,, this time simply reversing the judgment without ordering a new trial. 253 Fed. Rep. 987. An opportunity was allowed to that Court to correct the error and as it was not corrected the present writ of certiorari was granted. 249 U. S. 606, 597. Of course if the judgment of the Circuit Court of Appeals was right on the merits a new trial should have been ordered. Slocum v. New York Life Insurance Co., 228 U. S. 364. Myers v. Pittsburgh Coal Co., 233 U. S. 184,189. But as it has been necessary to direct the record to be certified up, it is necessary also to consider the merits of the case and to determine whether the Circuit Court of Appeals was right with regard to them.
Nothing turns upon the form of the pleadings. The evidence for the plaintiff was in conflict with that for the defendant upon important points, but we shall state the case as the jury might have found it to be if they believed the plaintiff’s evidence, as the verdict shows they did. — A member of a political party requested the defendant to suspend a political banner, which he furnished, across one of the principal streets in the borough of Dubois, between the Commercial Hotel and the Deposit National Bank. He asked the defendant to put it up, take it down after the election and attend to it for him, saying that he did not want to have any thing, to do with it. The defendant put up the banner, at first suspending it by a rope, but the rope breaking, substituted for it a wire cable of the defendant’s, and, the plaintiff says, did so without further orders. This cable was fastened on the hotel side by taking two turns round a chimney and clamping the end. The chimney stood thirty-one inches from the edge of the'cornice over the street, was twenty-one inches square at the base, and had a tin flashing from the roof inserted between the courses of brick two or three courses above the roof. According to the plaintiff’s evidence the cable, was attached above the flashing. The lower corners of the banner were attached to the buildings on their respective sides. Five days after the banner was suspended the man who employed the defendant caused it to string electric lights along the wire, not otherwise interfering with the work. “’The same day in. the afternoon, the weather being stormy, the banner dragged the chimney over and a brick struck Pancoast on the head, making a comminuted'fracture of the skull. The defendant put up the banner a third time after this fall, again, the plaintiff says, without further direction, and when the election was over took it down.
If these.were the facts, and, except with regard to the extent or the defendant’s control, they could not be disputed, manifestly the verdict was warranted. It did not leave the defendant free from any duty to Pancoast and the other travellers in the street that they had no contract with it. An act of this kind that reasonable care would have shown to endanger life, might have made the actor guilty of manslaughter, if not, in an extreme case, of murder. Rigmaidon’s Case, Lewin, 180. See Nash v. United States, 229 U. S. 373, 377. Commonwealth v. Pierce, 138 Massachusetts, 165, 178. The same considerations apply to civil liability for personal injuriés from similar causes that would have been avoided by reasonable care. See Gray v. Boston Gas Light Co., 114 Massachusetts, 149. A man is not free to introduce a danger into public places even if he be under no contract with the persons subjected to the risk.
It hardly is denied that there was evidence of negligence, but it was held by the Circuit Court of Appeals that the defendant's relation to the work ceased- when the banner was hung, that it had no further control over it and was not liable for what happened thereafter. Of course it is true that when the presence or absence of danger depends upon the subsequent conduct of the person to whom control is surrendered, the previous possessor may be exonerated, when the control is changed. Curtin v. Somerset, 140 Pa. St. 70. Murphey v. Caralli, 3 Hurlst. & Colt. 462. Thornton v. Dow, 60 Washington, 622. Glynn v. Central R. R. Co., 175 Massachusetts, 510. Clifford v. Atlantic Cotton Mills, 146 Massachusetts, 47,48. But how far this principle will be carried may be uncertain, Union. Stock Yards Co. v. Chicago, Burlington & Quincy R. R. Co., 196 U. S. 217, 223, and when as here the danger had been called fully into existence by the defendant it could not escape liability for the result of conditions that it alone knew, had created and had arranged to have continue, by stepping out of the control a few days before the event came to ’pass. Harris v. James, 45 L. J., Q. B. 545. Todd v. Flight, 9 C. B. N. S. 377., Swords v. Edgar, 59 N. Y. 28. Godley v. Hagerty, 20 Pa. St. 387. Joyce v. Martin, 15 R. I. 558. Jackman v. Arlington Mills, 137 Massachusetts, 277, 283. Dalay v. Savage, 145 Massachusetts, 38, 41. Clifford v. Atlantic Cotton Mills, 146 Massachusetts, 47, 49.
But it could not be said as matter of law that the defendant had stepped out of control. The facts in their legal aspect probably were somewhat hazy. Presumably the tenant of the hotel simply permitted what was done and had no other relation to it than such as might be imposed upon him by the law. Evidently the defendant handled the banner when it wanted to, and no one else touched it. The defendant’s employer if he told the truth not only did not intermeddle but might be found to have expressly required the defendant to take the responsibility. All the probabilities are that such control as there was remained with the defendant. The defendant got more than it was entitled to when the jury were instructed that even if the fall was due to negligence in putting up the banner, the defendant would not be hable unless by arrangement it had assumed a continuing duty to maintain the banner in a safe condition. The testimony on the two sides was contrasted and it was left to the jury to say which they would believe.
As we have implied, we regard it as too plain for discussion that the plaintiff’s evidence if believed warranted a finding that the defendant undertook the care of the banner while it was up. An effort is made to establish an error in allowing an amendment to the declaration after the statute of limitations had run. The declaration originally alleged negligence in the use of the chimney and that the fall was due to the use of the chimney as alleged. The amendment alleged also that defendant maintained the banner. If any objection is open it is enough to say that the original declaration was sufficient and that the amendment plainly left the cause of action unchanged.
Judgment reversed.
Judgment qf the District Court affirmed.