Syllabus.

POSTAL TELEGRAPH CABLE COMPANY v. ZOPFI

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE.

No. 351. Argued February 18, 1896.- Decided April 14, 1896.

The granting or refusal of a new trial is not subject to exception, and cannot be assigned as error.

In a chain of reasoning it is possible to have many inferences which unitedly lead to one end or conclusion; yet it does not follow that any one presumption or inference was based upon another presumption or inference, nor does it follow that, because a conclusion is reached as a result of many facts and many independent inferences from proven facts, therefore one inference has been obnoxiously piled upon another. In an action by Z., a girl thirteen years old, against a telegraph company to recover damages for personal injuries, it appeared that Z. lived, at the time of the accident, with her father in a house which fronted on a turnpike road. Between the fence in front of the house and the metaled part of the turnpike was a strip about ten feet wide of unpaved, low, spongy ground, lower than the macadamized road, and lower than the grounds within the fence. In front of the front gate was a platform about four feet square, made of plank lying on cross boards an inch thick. Between this platform and the metaled part of the turnpike, at intervals of eighteen inches, flat rocks were laid for use as steppingstones. The telegraph company, intending to construct a line of telegraph wire along the turnpike, threw a telegraph pole in front of the gate, the heavy butt end lying immediately in front of the platform. The butt end covered one of the stepping-stones next to the platform, so that the distance between the last exposed stone and the platform was from thirty to thirty-six inches. The evidence most favorable for Z. tended to show that both the platform and the stepping-stone were not more than from two to four inches above the low ground on which they were laid, while the pole at its butt was by actual measurement from eleven to twelve inches in diameter. All of the evidence tended to show that the whole diameter of the pole must have been above the level of the platform. The day of the accident was wet, and a light rain was falling. Water had settled between the turnpike and the platform, in part due to the pole's having checked the natural drainage. Z., in returning from school, instead of wading through the mud and water, used the stepping-stones. In stepping from the last exposed steppingstone over the pole to the platform her foot slipped and she fell backward on the pole, sustaining serious injuries. She testified that her foot did not touch the pole as she stepped over it, but that as she

Opinion of the Court.

touched the platform her foot slipped and she fell. Held, (1) That the fact that a step fully thirty-three inches long and high enough to step over the pole was an unusual and dangerous step for a girl thirteen years old is something more than merely a presumption or an inference, and that it was unusual and awkward was a fact of which either court or jury might take notice as within the common knowledge of mankind; (2) that the facts and circumstances of the case were such that either of two inferences might be drawn, -one, that the wet platform was the sole cause of Z.'s fall, the other, that the pole approximately and efficiently contributed, in coöperation with the wet platform, to Z.'s fall; (3) that if the jury should be of opinion from all the facts that but for the pole Z. would probably not have fallen, then, although the pole was not the causa causans, it would be a cause without which the fall would probably not have occurred, and upon such a finding the liability of the telegraph company would be clear; and (4) that the trial court properly submitted the case to the jury, and refused to direct a verdict for the telegraph company.

Zopfi v. Postal Telegraph Cable Company, 22 U. S. App. 136, followed.

Before LURTON, Circuit Judge, and SEVERENS and HAMMOND, District Judges.

The case is stated in the opinion.

Mr. John J. Vertrees (Mr. William O. Vertrees was with him on the briefs) for plaintiff in error.

Mr. John Ruhm (Mr. James Trimble, Mr. E. L. Gregory and Messrs. John Ruhm & Son were on the brief) for defendant in error.

LURTON, Circuit Judge, delivered the opinion of the court.

This is an action by Emma Zopfi, a minor, suing by Caspar Zopfi, her next friend, against the Postal Telegraph Cable Company, for personal injuries sustained through the alleged negligence of the company. She obtained a verdict, and a judgment thereon for $4,000, and this writ of error is prosecuted by the Postal Telegraph Cable Company for the purpose of reviewing that judgment.

The fourth, fifth and sixth assignments of error relate to the refusal of the Circuit Court to grant a new trial, and need

Opinion of the Court.

not be further considered. The granting or refusal of a new trial is not subject to exception, and cannot be assigned as error. Schuchardt v. Allens, 1 Wall. 359, 370; Arkansas Valley Land and Cattle Company v. Mann, 130 U. S. 69; Van Stone v. Stillwell and Bierce Manufacturing Company, 142 U. S. 128; Moore v. United States, 150 U. S. 57.

The third error assigned is: "There is no evidence to sustain the verdict in this cause, and therefore the verdict should be set aside."

The question sought to be presented by this assignment need not be considered in the form thus presented, for the reason that at the close of all the evidence the plaintiff in error moved the court to instruct the jury to return a verdict for it. This motion was overruled, and is made the subject of the first and second assignments of error. It is evident that if either of the assignments of error, based upon the refusal of the court to instruct for the defendant below, is well taken, it will be unnecessary to determine how far the plaintiff in error could be relieved from a judgment based on a verdict unsupported by any evidence whatever, where no motion had been made at the conclusion of the evidence for a peremptory instruction. We shall therefore consider the single question as to whether or not the court erred in submitting the case to the jury and refusing an instruction to find for the defendant.

Caspar Zopfi, the father of Emma Zopfi, the defendant in error, and with whom she lived, resided at the time of the injury to his daughter about three miles from Nashville, Tennessee, on the metaled turnpike road extending from Nashville to Gallatin in the same State. His place fronted on the turnpike, and was inclosed by a fence along the margin of the turnpike right of way. Between the gate opening into the yard or lawn of Mr. Zopfi and the metaled part of the turnpike is a strip, about ten feet wide, of unpaved, low, spongy ground, lower than the macadamized road and lower than the inclosed grounds of Zopfi. This border strip operates as a drain for water falling on the pike. In wet weather it is soft and muddy, and water stands in shallow pools. In

Opinion of the Court.

front of his front gate was a platform about four feet square, made of plank lying on crossboards an inch thick. Between this platform and the metaled part of the pike, at intervals of eighteen inches, flat rocks were laid down for use as stepping-stones in crossing from the platform to the pike.

The plaintiff in error, intending to construct a line of telegraph wire along this turnpike, had scattered at intervals between Zopfi's fence and the metaled part of the public road telegraph poles, intending at a convenient time to erect them. One of these poles was thrown just in front of the platform at Mr. Zopfi's gate, the heavy butt end immediately in front of the platform. There was evidence that this pole had been in the position described for some months and was to some extent an obstruction to the easy and safe use of the passway between the traveled turnpike and Zopfi's premises. There was evidence that this butt end covered one of the flat stepping-stones next the platform, so that the distance between the last exposed stone and the platform was from thirty to thirty-six inches. There was some conflict of evidence as to the height of the platform above the surrounding ground, the thickness of the obstructing part of the telegraph pole and the height of the flat stepping-stone from which one would have to step in order to step over the intervening pole to the platform beyond; but, taking the most favorable view of the evidence for the defendant in error, as we must do when we come to determine the question as to whether there was any evidence upon which a jury might reasonably find a verdict for the defendant in error, we may say that there was evidence that both the platform and the stepping-stones were not more than from two to four inches above the low ground on which they were laid. The pole at its butt was by actual measurement from eleven to twelve inches in diameter. If, therefore, it lay on top of one of the flat stepping-stones and these stones were about on a level with the platform, the whole diameter of the pole must have been above the level of the platform. There was evidence to this effect; and we must try this question upon that evidence which is most favorable for the defendant in error.

Opinion of the Court.

Upon the day of Miss Zopfi's injury she was returning from school to her home. The day was wet, and a light rain was falling. Water had settled between the turnpike and the platform, in part due to the pole's having checked the natural drainage. To get into her gate it was necessary to go either through the mud and water or use the stepping-stones and the platform at the gate. She took the latter and usual course. In stepping from the last exposed stepping-stone over the pole to the platform her foot slipped, and she fell backward on the pole and sustained very serious and permanent injuries. She says she did not step on the pole, which was a peeled chestnut and wet, and that her foot did not touch the pole as she stepped over it and onto the platform; but that as she touched the platform her foot slipped, and she lost her balance and fell.

At the conclusion of all the evidence the court refused a request to instruct the jury to find for the defendant. After telling the jury that, if the presence of the pole in no way caused or contributed to cause the plaintiff's fall, its verdict should be for the company, although they might think that her injury from the fall was aggravated by falling on the pole, the court instructed the jury as follows: "If the pole caused the fall, or concurred as the operative or producing cause with something else, and approximately produced this injury, the defendant would be liable. You will look to all the testimony and to the entire situation there, the condition of the weather and everything else, making the complete transaction, and determine what did cause her fall.

If you are satisfied by a reasonable preponderance of the testimony that the pole did cause the fall, or that it concurred actively with anything else to produce it, the defendant would be liable." This charge was in accordance with the opinion of this court upon a former appeal in this cause, where a new trial was awarded because we were of opinion that the court had erred in instructing the jury to find for the present plaintiff in error. Zopfi v. Postal Telegraph Cable Company, 22 U. S. App. 136, 143.

It is now argued that upon the facts in evidence the

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