UNITED STATES SUPREME COURT DECISIONS ON-LINE

When the judgment actually rendered in the court below was for an amount giving this Court jurisdiction, which amount was reached by adding to a verdict for $5,000, interest from the time of the verdict to the time of the entry of the judgment in a district where the local state law does not permit that to be done, and the plaintiff below, although excepting to the allowance of interest, and to the refusal of the court below to permit a remitted, brings no writ of error to correct the alleged error, this Court cannot dismiss a writ of error brought by the defendant to review other rulings in the case.

In an action against a railway company to recover damages for injuries caused by one of its trains striking a wagon in which the plaintiff and another woman were seated as it was crossing the track on a public highway at grade, the negligence of the defendant having been established, there was further evidence tending to show that the women were driving slowly and with a safe horse; that the train was several minutes behind time; that as they approached the low place at which a train could be seen if one were there, they stopped to look and listen, but neither saw nor heard anything; that after stopping they started driving slowly up the hill to a point at the top between forty and fifty yards from the track, where the slope commenced, and there they stopped again and listened, but beard nothing; they then drove slowly down the hill, both listening all the time, without talking, and heard nothing, and that just as they got to a cut and the horse had his feet on the nearest rail, the train came around a curve and the collision occurred. Held that the question whether there was contributory negligence on the part of the plaintiff was properly submitted to the jury for determination.

This was an action brought by Emma Griffith in the Court of Common Pleas of Licking County, Ohio, against the Baltimore and Ohio Railroad Company to recover for injuries received on August 1, 1888, by the collision of a train of that company with the vehicle in which plaintiff was then being conveyed. The cause was removed, on the petition of the company, into the Circuit Court of the United States for the Southern District of Ohio, where it was tried, and resulted in clubjuris

Page 159 U. S. 604

a verdict in favor of the plaintiff for $5,000. A motion for a new trial was made and overruled, and judgment entered on the verdict, with interest added, to review which this writ of error was sued out. The charge to the jury by Sage, J., and his opinion on the motion for new trial, are reported, 44 F.5d 4, 582.

The following errors assigned were relied on in the brief for plaintiff in error

"Sixth. The said court erred in refusing to give the ninth charge asked by the plaintiff in error."

"Seventh. The court erred in refusing to give the tenth charge asked by the plaintiff in error."

"Tenth. The court erred in overruling the motion of the plaintiff in error for a new trial."

"Eleventh. Upon the whole record, judgment should have been rendered in said cause in favor of the plaintiff in error and against the defendant in error, instead of the judgment which was rendered."

The instructions thus referred to were as follows:

"9. The testimony in this case shows that the plaintiff was guilty of negligence contributing to her injury. Such being the fact, she is not entitled to recover, and your verdict must be for the defendant."

"10. It was the duty of the plaintiff to stop before driving on this railroad track, and allow the train to pass before she attempted to cross, and if she failed so to do, and was thereby injured, she cannot recover in this case. "

Page 159 U. S. 605