Petition for Writ of Certiorari — James v. United States

Supreme Court brief1970

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7 IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

vn. Fag

Cases Cite

Page

Amador v. A/S J. Ludwig Mowinkels Rederi, 224 F 2d

437 (CCA 2d) cert. den. 350 U.S. 901, 76 S.Ct. 179 .... 30

Andrews v. Olin Mathieson Chemical Corp. (8th Cir.

2004) $34 F. Sd 482, 4988 we eee av

Arizona v. Anelich, 206 U.S. 110, 56 S. Ct. 707 ....... 30

Ballwanz v. Isthmian Lines, Inc. 319 F 2d 457 (4 Cir.

Ne i kw Gass 29

Bredy v. Southern Railway Co., 320 U.S. 476, 479, 64 S.

eae EET a nO 11,17,33

Callen v. Pennsylvania R. Co. 162 F 2d 832 .......... 15

Carpenter v. Baltimore & Ohio R. Co., 109 F 2d 375... 18

Chesapeake & Ohio R. Co. v. Smith, 42 F 2d 111; cd.

OR UR GR GR TAG. GR nn cccccccccccccccccccces 18

Crumady v. The Joechim Hendvik Pier, 358 U.S. 423,

79 S.Ct. 445 EASTER PO SIS eee Co tee ree ee Pe paiacacnns 19

D’Amico v. Licyd Brasileiro Patrinonic Nationale 364 F

i ae ee eins Sebo dine eneete doses 21

Didinger v. Pennsylvania R. Co., 89 F 24798 .......... 18

Dowell, Inc. v. dowers, 166 F 2d 214 ................ 11

Poge

- Biliott v. Chicago, M-& St. P. Ry. Co. 24 8. C2. 85. 180

sores MOTE EE ME BLL 18

Ferrara v. Sheraton McAlpin Corporation, 311’ F. 94 294

a Oty Tee Ne FE eT, ake . 1

Gibbs v. Kiesel $82 F 9d 917 (1967) ................ 20

Gritlen v. United States 23% F. 2d 919 nenesendotnde ae

Hegans v. Parrell Lines, 237 F 9d 477................ 1

Harris v. Smith, 372 F 2d 806 (1967) ................ 16

Hemphill v. Mississippi Power Co., 04 F 24971 ........ a

Holley v. Manfred Stansfield, 186 F. Supp. 212 (ED Va.

NER RRME RV GE 5. ews = tied . 19

Hussein v. Isthmian Lines, Inc., 405 F 2d 946 (5 Cir. 1968) 8

Imperial Oil, Led. v. Drlik, 294 F 24 4 eerccccescccese ll -

dune T., Inc., v. King, 290 F 2d 404 pcecccoccccoece 1,29

Kincade v. Mikies, (6th (Cir.) 144 F. 9d 784 ote beeeees 17

Knox v. United States, 294 F 2d 354 (3rd Cir. 1961) ... 19

Lowery v. Hocking Valley RB. Co., 60 F 24 78 ..... —

Maccarone v. A/S Inger, 262 F 2d 560 (overriding cable). 11

Mehnich v. Souther 8. 8. Co., 881 U.S., 96, 64 8. ce.

EE thd ennsnddandbesdnen Sibianmesieimaabins 11,30

Metager v. 88 Kirsten Torm, 245 F. Supp. 227 (D. Md.

PED 50 ctccsnccbinssisanphcebasnienici 19

iti’

Powe

Minneapolis St. P. & S. S.M. R. Co. v. Metal-Matic, Inc. 8

Gir. 1063, SBS F. Bd OOS, O10 ... eee 17

Mitchell v. Trawler Racer, Inc., 362 U.S. $39,608...

ED cccccccccccccccewccccccccccceccesccccees 18

Mc Nello v. dohn B. Helly, Inc. 383 F 34 06 (1980) .... @

Nentesbet, inc. v. B. F. Raboy @ Co. 31 AD. 24 804,

STE é0n0060600660060600000000 pasese 31

Nashville, C. @ St. L.R. Co. v. York, 127 F 24. 606... 18

Melson v. Robin Line 6.8. Co., 39 F 20 490 ........... “3

C’xien v. Wilys Motors, Inc. 386 F 24 163 (1967) . ebin 30

Paluch v. Brie Lackawanna Railroad Company, 387 F 2d

a ees ciainndianene sees 9

Petterson v. Aleska Ghipping Co., 206 F 24 478, offd

347 US. 396 LPR ieeS600600000600600000008 30

Pike v. Geand Trunk Ry. Co,, 39 F. 255 aneketabonens 18

Pettchand v. Liggett & Meyers Tobacco Company, 360 F.

i tn pnncncneceedoetenseaneeeecetrs 10

Reid v. Quebéc Paper Gales & Tranep. Co. Lad., 340 F 2a

BOB Gir. 10GB)... cw ccnes seteeeeeees 19

Rogers v. U.S. Lines, 206 F 2d 57, rev. per cur. 347 U.S.

084, 74S. Ct O49 ........ eeeeccssesocsosscecosssbl 30

Sams v. Haines, 299 F. Supp. 746 (2980). neeecees pane 7 ;

fen Antonio. Tike, 267 F 2d 983 (2988). wanes pee 15

Seance ¥. Poo! Shipping Co. Lad 296 F 24729 ..... 30

Sees Ghipping Co. v. Sigrachi, 296 U.S. 85, 08 8. Ch. 672.230

Suennon v. UL. 119 F. Supp. 106, 295 F. 34.487 ..... 10 |

Shokuwen Shimabukuro v. Higevoshi, 140 F. 94 13, of.

$82 US. 755,648. CL 1270.................05e0 8

/ Sn v2 Latm, 01. Sap. 088 GD Pa 108. 19

Southam R. Co. v. Deer, 240 F.73......... aealaaiaall 30

Southern Railway-Casolina Division Co. v. Bennett, 233

|___FAN tet 30

Speague v. The Texas Company, 250 F. 24 123 am 28

Standard O8 Go. of New York v. RL. Pitcher Co. 289 F.

MT citiiliintinn tii sneneiiiainiates ED 18

Page

Strika v. Netherlands Ministry of Traffic, 185 F. 2d 555

(2d Cir. 1960) ed. 342 U.S. 904,71 8 Ct. 614........ 19

Sweeney v. Erving, 228 U.S. 233, 338. Ct. 416 ........ 30

Texas Menhaden Company .v. Johnson, 332 F. 2d 527 (5

il ee Rata NR a 30

Wing v. Rockport Steamship Company, 30 F.R.D. 349,

(1962)........ a Ra bats ws 18

Other Authorities

a ea as iivacsscacncess 4

Rule 51,28 US.C.A. ...... Stent ale? oH

IN THE

_ SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1969

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR.

THE FIFTH CIRCUIT.

Your petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals

for the Fifth Circuit entered on June 24, 1970.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit FP. 2d and there were no opinions

rendered in the District Court. :

The judgment of the-United States Court of Appeals for

the Fifth Circuit was entered June 24, 1970. A petition for

1. Is the principle of uniform and equal justice to all

controlling on United States Courts of Appeal as to dis-

cretionary matters. Has an appellant the right to have a Court

of Appeals review errors such as the Court has held by many |

prior decisions were reviewable?

2. Do statements to a jury by counsel as to the law to

which exceptions are not sustained and, in substance, held to

be correct, have the same legal effect as instructions by the

3. is a lMtigant entitled to dear, unambiguous,

unconfusing and relevant instruction as to the law, free from

The Court below has enunciated a principle of law in

conflict with its prior uniform holdings in other comparable

situations.

The decision by the Court below has enunciated a

York attorney, all of which constitutes a radical departure

from the American concept of justice, as enunciated by this

Honorable Court and uniformly by other United States Courts

of Appeal. |

There has been a complete reversal of the well

established law as enunciated hy this Court that liability for

breach. of warranty of seaworthiness is not dependent on

negligence, which principle was overruled, in substance, by the

Court below affirming the correctness of the statement by.

respondent's counsel that in order for petitioner to be entitled

to a verdict he had to prove that Charlies F. Greer personally

committed a wrong or negligent act.

STATEMENT OF THE CASE

On the 6th day of January, 1966, petitioner had his

right leg mangled aboard the shrimping vessel ROVING

GAMBLER when caught by a cable wrapped around a drum

when he attempted to correct an override by kicking the

cable back into position.

In order to receive the benefit of Rule 56 of the Federal

Rules of Civil Procedure, petitioner, for the purposes of the

motion, consented to adopt the shipowner’s factual version of

the accident, thereby all controversial issues of fact were

eliminated as to the physical condition of the work area and

equipment involved.

The shipowner charged contributory negligence on the

part of the seaman in using his foot instead of his hand to

correct the override.

The shipowner did not put at issue any question as to

the physical condition of the work area or the drum or cable

involved.

The motion was denied.

At the trial, the same facts were urged.as a basis for a

directed verdict in the seaman's favor.

In the absence of any controversial issue of fact as to the

physical conditions of the work area and equipment, the

matter was one within the exclusive province of the Court to

decide as a question of law, and it was error for the Court to

refuse to act in accordance with the provisions of Rule 56 of

the Federal Rules of Civil Procedure and the uniform and well

established law laid down by this Honorable Court and other

Courts, as hereinafter more particularly set forth.

The Master of the vessel was Captain Pacetti whose

deposition was taken, which demonstrates the absence of any

controversial issue of fact as to the unseaworthiness being the

proximate cause of the accident.

The following are quotes from pages 47 and 48 of the

Captain's deposition.

“Q. Shouldn't the cables wind on the drum evenly

without having to resort to what you call kicking the

cables?

A. “¥es.”

“Q. How would that have anything to do with his leg

being caught in the drum?

A. Well, without it, he would have been able to dis-

engage the friction.

Q. Yes, sir, Sane eee Eee Ripe ah ayes 4 Me

with his foot being caught in the drum? §

—_

A. it — it wouldn't have had nothing to do

‘‘Pundamental error is a basis for appeal,

irrespective of the fact that a precise exception was not

taken.”

The record is devoid of any adequate instruction as to

the applicable law of the case, in total disregard of the fact

nn Sala

sop tit Salas Lawrene, In the ca of Sams o. Hains

a Supp. 746 (1969) comments on this question as

follows: (750)

As observed by Judge Brown in the Fifth Circuit case of

dune T., Inc. v. King, 290 F. 2d 404, at 406: “What is

customary in a trade may be evidence of due care—here

the reasonable fitness element on the concept of

seaworthiness—but it is not the legal measure of the

ny." Her & te fet Gat 0 Gene mn enw te

economically unfeasible.”

The absence of a man at the cable to guide it while it

was being taken up so as to prevent the foreseeable override

constituted unseaworthiness, on the basis of the absence of a

sufficient number of men to perform the work in question st

the time in question.

Hussein v. Isthmian Lines, Inc., 405 F. 2d 946 (5 Cir.

1968)

In the light of the charge, the jury could not possibly

understand that it would be justified in returning a verdict in

tever of petitioner on the basis of liability -jithout faut

The Court recailed the jury and, in effect, took from the

petitioner the right to obtain a verdict in his favor on the

basis of unseaworthiness.

The Court’s charge, in effect, was a directed verdict in

favor of the respondent, as no seaman could ever recover a

' verdict in his favor for any accident brought about by an

‘O.unsafe condition of the structure of the ship or its gear or

The decision by the Court below is in conflict with its

prior decision in Hussein v. Isthmian Lines, Inc., supra, —

wherein the Court stated at page 947:

“{1-3] The duty to furnish a seaworthy vessel (a vessel

and appurtenances reasonably fit for their intended use)

is absolute and is completely separate from the

shipowner’s duty under the Jones Act to exercise

reasonable care. Mitchell v. Trawler Racer, Inc., 362 U.S.

539, 549, 80 S. Ct. 926, 4 L. Ed. 2d 941, 948 (1960).

This duty is a type of liability without fault and may be

violated without regard to negligence. Seas Shipping

_ Company v. Sieracki, 328 U.S. 85, 94, 66 S. Ct. 872, 90

L. Ed. 1099, 1106 (1946). Since the record contains

evidence from which the jury could have found that the

appellant was required to work on a greasy ladder, and

was not furnished the proper equipment to do the job

assigned to him, the erroneous refusal to give the

requested charge was prejudicial. Waldron v.

Moore-McCormack Lines, Inc., 386 U.S. 724, 87 8. Ct.

1410, 18 L. Ed. (1967).”

In the case of v. Erie Lackawanna Reilroed

. Company, 387 F. 24 996 (1968), the lower court adopted the

conflicting principle, quoting from the decision in Freifield v.

Hennessy, 363 F. 2d 97; 99 (3 Cir: 1965), as follows:

“Where it. is apparent on the face of the record that

counsel failed to object to a fundamental and Highly

prejudicial error, and this failure may have resulted in a

miscarriage of justice, the error must be noticed and

rectified.”

See also Ratay v. Lincoln National Life Insurance

Company, 378 F.2d 209 (1967).

Also Freifield v. Hennessy, 353 F. 2d 97 (1965) where

the Court held at page 99:

“The defendant argues that since the : plaintiff

interposed no objection to the court's instructions he °

resulted in @ miscarriage of justice, the error must be

noticed and rectified. Ibid. This exception to the general

tule is applicable to the instant case.

The judgment of the court below will be reversed

and the action will be remanded with instructions that a

new trial be ordered.”

That the charge by the trial court was defective, and the

court below in error is clearly demonstrated by the 4ecision

in the case of Pritchard v. Liggett & Myers Tobacco

Company, 350 F.2d 479 (1965). Quoting from the concurring

opinion of Cissuit dudge Posoman, the Sellowing qppens ot

page 487:

ie itt die teainn

but also because of another error. It instructed the jury

that they could not find an express warranty unless the

seller ‘actually intended to be bound by his statement.’

Such a requirement is contrary to the law of

Pennsylvania since the adoption of the Sales Act of 1915

by which Pennsylvania departed from its previous

adherence to the English rule. See 1 Williston on Sales

(Rev. Ed. 1948). § § 196-200; cf. Rothermel v. Phillips,

292 Pa. 371, 375-376, 141 A. 241 (1928). The true test

is not whether the seller actually intended to be bound

by his statement but rather whether he made an

affirmation of fact the natural tendency of which was to

induce the sale and which did in fact induce it. Act of —

May 19, 1916, P.L. 543, §12, 69 Purdon’s Pa. Stat.

Annot. §121; 1 Williston on Sales (Rev. Ed. 1948).

$199.”

The admission by the Captain that the cable was

overriding is further proof of unseaworthiness.

Shannon v. U.S. 119 F. Supp. 706, rev'd on other

Pounds, $06 F. 2d 457. ae ie a *

en pe en Oe

kinky or hed some other similar defect, or that theré was

some mal-alignment of the winch itself, and that, in and of

iteelf, is likewise evidence of unseaworthiness. Shannon v. r

Co ies Mannich & Southern 8:8. Co., 381 US. 96, 648.

In the case of Hagans v. Farrell Lines, 237 F. 24477,2 ”

drifting cable was held to constitute unseaworthiness.

Maccarone v. A/S Inger, 262 F. 24 600, (ovmiting

cable)

“Imperial Oil, Ltd. 6, Drith, 234 F. 24 4 |

Grillea v. United States, 282 F. 24°919

In the case of Brady v. Southern Railway Co., 820 U.S.

476, 479, the Court held as follows:

| “When the evidence is such that without weighing the

| credibility of the witnesses there can be but one

The decision by the court below was in conflict with

the Court of Appeals in the Fifth Circuit, in the case of

Dowell, Inc. v. Jowers, 166 F.2d 214, where the court stated

at page 221:

% Poke he .

“Rule 51 of the Federal Rules of Civil Procedure,

28 U.S.C.A., following section 728c, provides thai no

party may assign as error the giving or failure to give an

instruction unless he distinctly presents to the trial court

his ground for objection. This conforms to the practice

generally followed in appellate procedure everywhere.

Hence, the error in instructing the jury in this case

cannot be complained of by the defendant. If it is

considered at all, it must be on motion of the court. The

court’s right in a proper case to consider on its own

motion errors patent upon the face of the record where

no objection was made, was considered by the United

States Court of Appeals for the District of Columbia in

Shimabukuro v. Nagayama, 1944, 140 F.2d 13, 15. We

find ourselves in thorough accord with the decision in

that case.

| ‘The power of an appellate court on its own motion

to consider grounds of error not raised below is not one

which should be exercised in an ordinary case.

‘But where it is apparent to the appellate court on

the face of the record that a miscarriage of justice may

occur because counsel hag not properly protected his

client by timely objection, error which has been waived

below may be considered on review. Mr. Justice Black

has recently said: “There may always be exceptional cases

or particular circumstances which will prompt a

reviewing or appellate court, where injustice might

otherwise result, to consider questions of law which were

neither pressed nor passed upon by the court or

administrative agency below.’ Hormel v. Helvering, 1941,

$12 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037.’

——We think that in the interest of justice the court

here must act upon its own motion. So acting, we hold

that the trial judge’s charge to the jury constitutes

reversible error.”

. 12

The decision by-the court below was in conflict with the

decision of the United States Court of Appeals, District of

Columbia, in the case of Shokuwan Shimabukuro v

Higeyoshi Nagayma, 140 F.2d 13, c.d. 322 U.S. 755, 64 S.

Ct. 1270 where the court stated at page 15:

“The power of an appellate court on its own

motion to consider grounds of error not raised below is

not one which should be exercised in an ordinary case.”

But where it is apparent to the appellate court on

the face of the record that a miscarriage of justice may

occur because counsel has not properly protected his

client by timely objection, error which has been waived

below may be considered on review. 2 Mr. Justice Black

has recently said: ‘There may always be exceptional cases

or particular circumstances which will prompt ea

reviewing or appellate court, where injustice might

otherwise result, to consider questions of law which were

neither pressed nor passed upon by the court or

administrative agency below. 4

Heretofore this court has noticed error which

parties waived by failure to object at the trial court, to

avoid injustice in criminal cases.° There is no logical

reason for refusing to exercise our power to notice

fundamental error in cases where personal or property

rights are involved, and our Rule 17(i), which states the

principle, makes no distinction between civil and criminal

actions."S —

2mr. Justice Stone in Duignan v. United States, 1927,

274 U.S. 195, at page 200, 47 S.Ct. 566, at page 568,

71 L.Ed. 996, said: ‘This court sits as a court of review.

It is only in exceptional cases coming here from the

federal courts that questions not pressed or passed upon

below are reviewed.’

3Sibbach v. Wilson & Co. Inc. 1941, 312 U.S. 1, at page

16, 61 S.Ct. 422, at page 427, 85 L.Ed. 479, where Mr.

Justice Roberts said: ‘The District Court treated the

refusal to comply with its order as a contempt and

committed the petitioner thereafter. Neither in the

Circuit Court of Appeals nor here was this action

assigned as error. We think, however, that in the light of

the provisions of Rule 37, it was plain error of such a

fundamental nature that we should notice it. Section (b)

(2) (iv) of Rule 37 exempts from punishment as for

contempt the refusal to obey an order that a party

submit to a physical or mental examination. The District

Court was in error in going counter to this express

exemption. The remedies available under the rule in such

a case are those enumerr‘ed in Section (b) (2) (i) (ii) and

(iii). For this error we reverse the judgment and remand

the cause to the District Court for further proceedings in

conformity to this opinion.’

4tiormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct.

719, 721, 85 L.Ed. 1037.

SPreed v. United States, 1920, 49 App. D.C. 392, 266 F.

1012; see Schwartz v. United States, 1926, 56 App. D.C.

106, 106, 10 F.2d 900, 901 (citing additional

authorities). McAffee v. United States 1939, 70 App.

D.C. 142, 160-151, 105 F.2d 21 (death penalty);

McKenzie v. United States 1942, 75 U.S. App. D.C. 270

126 F.2d 533 (death penalty); Boykin v. United States,

1942, 76 U.S. App. D.C. 147, 130 F.2d 416 (appeal and

record perfected under unusual circumstances).

S:Points Not Presented. Points not presented (errors not

assigned in criminal cases from the district court)

according to the rules of the court, will be disregarded,

though the court, at its option, may notice and pass

upon a plain error not presented or assigned.’ ;

And see Neufield v. United States, 1941, 73 App. D.C.

174, 190, 118 F.2d 375, 391; ‘A plain error may, of

course be noticed, especially in a criminal case, even

though not assigned.’ (emphasis added)

The decision by the court below is in conflict with the

decision in Callen v. Pennsylvania R. Co., 162 F.2d 8382,

where in substance the court held that the court's error is not

cured by the court's effort to explain the situation without

charging on its own motion to disregard the erroneous

construction of the law by defense counsel. The Court said at

page 835:

“That type of gytruction was especially important

in view of the confusion which had been created over

the status of the release.” ‘

The affirmance by the lower court of the decision of the

trial court, refusing to consider fundamental error, is in

conflict with the holding in the case of San Antonio v.

Timko, 868 F.2d 983 (1966), wherein the court held at page

986:

73 L.Ed. 706 (1929), which we will consider on appeal

even though the point was not raised at trial. Ferrara v.

Sheraton McAlpin Corp. 311 F.2d 294, 297 (2 Cir.

1962); Dowell, Inc. v. Jowers, 166 F.2d 214, 221, 2

A.L.R. 2d 442 (5 Cir.). cert. denied 334 U.S. 832, 68

8.Ct. 1346, 92 L.Ed. 1759 (1948); Shokuwan

Shimabukuro v. Higeyoshi Nagayama, 78 U.S. App. D.C.

271, 140 F. 2d 13, cert. denied, 322 U.S. 755, 64 S. Ct.

1270, 88 L.Ed. 1584 (1944); 5 Moore, Federal Practice

§ 46.02, pp. 1903-04. When we combine this episode

with the previous improprieties in summation and the

exceedingly thin character of the evidence, we are

convinced the judgment cannot be allowed to stand. See

F. W. Woolworth Co. v. Wilson, 74 F.2d 439, 442-443 (5

Cir. 1934).

The judgment is reversed and the cause remanded

for a new trial.”

“The decision by the court below is in conflict with the

decision by the United States Court of Appeals, 8th Circuit,

in the case of Harris v. Smith, 372 F.2d 806 (1967), where

the court stated at page 815:

“An additional ground of error, although not urged

- on appeal, should be noticed by this court because of its

substantial effect upon the rights of the parties. It is

within the discretion of this court to notice plain error

in civil appeals. As the late Judge Thomas stated for this

court in General Finance Loan Co. v. General Loan Co.,

8 Cir. 1947, 163 F.2d 709, at 711:

‘We may, however, in our discretion consider a

plain error apparent on the face of the record for the

purpose of avoiding a manifest miscarriage of justice,

or where the issue raised is one of public concern,

even in a civil case. Kincade v. Mikles, 8 Cir., 144 F.

2d 784; National Aluminate Corporation v. Permutit

Co. 8 Cir., 144 F.2d 93.’

See also, Andrews v. Olin Mathieson Chemical Corp. 8

Cir., 1964, 334 F. 2d 422, 428; Minneapolis St. P. & S.

S.M. R. Co. v. Metal-Matic, Inc. 8 Cir., 1963, 323 F. 2d

903, 910.”

The refusal by the court below to consider fundamental

error is in conflict with the holding by the Court of Appeals

in the 2nd Circuit, in the case of Ferrara v. Sheraton McAlpin

Corporation, 311 F.2d 204 (1962), where the court stated at

page 298:

“When the integrity of a trial court's judgment has

been called into question by a substantial departure. from

those rules, an appellate court cannot put aside this

responsibility merely because of the inadvertence of

appellant’s counsel at trial. That responsibility compels

us to reverse this judgment.

Reversed and remanded.”

The Supreme Court of the United States in Brady,

Admx. v. Southern Railway Co., 320 U.S. 476, 64 S. Ct. 232

(Dec. 1943) laid down the following principles of law as being

controlling:

(p. 284)

“When the evidence is such that without weighing the

credibility of the witnesses there can be but one

reasonable conclusion as to the verdict, the court should

determine the proceeding by non-suit, directed verdict or

otherwise in accordance with the applicable practice

‘without submission to the or by judgment

aad eeeiait de enti tu oe direction of the

triel the result is saved from the mischance of

speculation over legally unfounded claims.”

Since the early cases of Elliott v. Chicago, M. & St. P.

Ry. Co., 14 8. Ct. 85, 150 U.S. 245, and Pike v. Grand Trunk

Ry. Co., 39 F. 255, our Courts have uniformly held that the

absence of an issue of fact in a personal injury action for

damages, rendered the question one of law for the Court,

In the case of Standard Oil Co. of New York vu. R. L.

Pitcher Co., 289 F. 678, the Court stated that while the

question of what was proximate cause was ordinarily for the

jury, yet, where the whole evidence offered not dispute upon

material points, it became a question of law for the Court.