The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-09-30

and Concentrate all their litigation In such
county Under our statute relating TO the
change OF venue, as amended In 1893, II Is
now exceedingly dififcut for defendant,
ana especially railroad company. TO pro-
cure such change no matter how great the
necessity for so doing may be- The greater
the prejudice. the more difficult It Is to
change the venue, and the more disposed will
be the average elective Judge to yield 10 such
prejudice and refuse TO make the change.
This abuse OF statutory privilege reason
able IN itself touching the venue OF suits.
might be provided against by requiring that
the action be brought either In the county
OF tho plaintiffs residence or the county
wr,re the accident complained OF may have
occpsred: and certainly the plaintiff should
have no Just reason TO complain because OF
such restriction
The lax rules OF eur system. or rather want
Of system, of pleadings and practice here
Itunitlss for. as a distinguished anti railroad
practitioner OF this State has expressed It,
| ''rebbng railroad companies through the
forms o. the law can DO effectively changed
or relieved against only by legislative action.
To what extent nre the courts, aud
Incidentally the juries. Responsible
for the menifestly unfair treatment
accorded railsoad companies In thiA
State. ms compared with that ne
corded other enterprises and indus
tries here, and similar interests
eiscwbcrcf
! approach this branch Of the INQUIRY with
not little difhdence, realizing that It is a
simple task to criticise the acts OF others,
moro able, perhaps. and quite as honest ana
4 fearless, yet conscious OF the improperly OF
my assuming to teach their duty to our
judges. There are, however, one or two
matters relating to the manner of admin
iisternk the law through our courts, which
| trust may be properly touched upon here.
A rule OF practice established by our SUI
preme court, not OF legislative origin. which
has strongly initiated against fair trials IN
Utilization OF the character here under COM
alteration In this state Ia the rule that *
there is any evidence, however slight, rails
ing an issue OF fact, the trial judge has
right TO direct a verdict. but must submit
the case 30 a jury even though he would
not for a moment hesitate to set aside a YER
dict in plaintiffs favor, should one be rom
dered. The persistence with which our SUI
prcme court has adhered TO this rulo, In the
light Of tho weight OF well considered cases
10 other jurisdictions announcing contrary
doctrine, and in the light Of the experiences
OF our own courts with Its operation, 10 a
matter for surprise.
The rule which I understand to DO sup
ported by the weight Of authority Is that an
lnounced by the United States supreme court
through Mr.. Justice Miller, In the case OF
Peasants VS., FAINT. % Wall. I20. and reiter-
ated and affirmed In long limo OF cases,
that:
I'm every case. before the evidence is left
TO the jury there is preliminary question
for the judge not whether there is any evil
denee upon which a jury can properly pro-
coed to Ind verdict for tho party produce
ing. 1t, upon whom the onus OF proof is Inn
posed Must the court so through tho idle
ceremony of submitting to the Jury testl-
mony on which plaintiff relies, when II Ia
clear to the judicial mind that II tho Jury
should find verdict in favor of the plaintiff.
that verdict would be set aside and new
trial hadf Such proposition is absurd, and
accordingly we hold the true principle to be,
that II the court is satisfied that concodlng
all tho differences which the jury could justi-
nably draw from the testimony the evidence
is insufficient TO warrant verdict for the
plaintiff the court should say so to the
jury"
Mr.. Dillon. in his admirable lectures on
'The Law and Jurisprudence OF England and
America" In discussing the relative provinces
OF the court and Jury, and tho growing dis
satisfaction with our jury system, hys:
THE evil is increased by the prevalence In
some OF the States OF the false principle
known as tho sclntllla doctrine namely: II
there is a scintila OF evidence. tho case must
80 to the jury; whereas the true doctrine is
, that approved by the supreme court OF the
I United States, namely, that no casa ought to
, In favor of the party who asks the submits
sion is so weak that verdict In his favor
ought TO be set aside by the court Tho in
Justice often produced by tho srintllla doc
trne and by the refusal OF the trial cour
to Interfere with uneound verdlcts liz mad,
. final by the refusal of the appellate court. ex
cept IN case OF most negrnnt wrong to in
, tertere with the discretion OF the trial cour
In refusing new trial. II the courts will
clearly instruct the juries and will exercis,
When they ought TO do SO, the power to Sc
aside yerdlct5 and grant new trials Their,
/ Will be less complaint about trial by jur,
and less agitation for a change In the law
r II is gratifying however, to note that Will,
4 our supreme court has not, theoretically a
least modified tho narrow doctrine here re
ferred TO, laid down In tho case OF Choat
D VS. san Antonio and Aransas Pass Railwa.
: Company, 50 Texas, IS, and Washington VS.
4 missouri. Kansas and Texas Railway Com
pany. 20 Texas 32l, It has, by its practoa
v application. ebtogatod tho rule In at lena
!, oro cOse. that OF Joske VS.. Irvine 81 Texas
5Sl. / have in mind several cases in IN,
, own practice, where railroad companies hily
4 paid considerable sums IN the way OF com
promises. rather than incur tho expense O
= repeated trials, IN cases where tho tria
< iudgo would not direct verdict in favo
8 OF the defendant. aud yet would not allow
n verdict in rlaintifra favor 10 stand.
8 Theoretically, the law requires trial iudg
n to approve every verdict, and TO allow n
yerdict contrary TO tho great eight and pre-
II ponreTance of tho evidence to pass unchal
: lenged. We all know that many motions TO
IL new trials have been oyerruled where tn
q judge was convinced that tho verdict wa
. against tho preponderanco OF tho evldenc
j. | TO that degree which showed that NANTES
u Injustice had been done. and where In th
, language OF our supreme court IN tho cas-
I, OF Choate va. San Antonio and Aransas Pas
n Railway Company go Texas. $50, the judg,
in effect. abdicated 'tho functions of his OF
"a fee. and permitted the prerogatives of IN
v Jury to be perverted TO the Accomplishment
S OF wrong" The verdict OF an intelligent an
a impartial jury ID entitled to respect, bu
l. there is certainly no sanctity about q vel
v Diet which bears upon its face tho unnlit
a taxable stamp OF passion and prejudice. an
Ia more than there ia about injustice In an
% | other form. Each volume Of our report
!, contains greater number OF cases than III
"a preceding one where yerdicts are formal
/. approved. where II 10 evident, from I'll
!. language of tho opinion, that they have M
! been in fact sanctioned by ono OF tho judges
0, Mr. e. Parmcrlee Prentice, n very II
IS teresting article in the September uS9s
Dt Arena, entitled Where Jury Bribing 81
ne gins" in speaking of this disposition of OF
courts to lend their formal stamp of approvs
AZ TO Judgments which they do not In fa
is sanction. says;
Of 1T IS impossible to read many OF thes
a opinions without wondering how the cor
I'd science OF the court could. MS judges,
le satisfied with affirming Judgments which, OF
"a | ylousy, did not commend themselves 10 theI
Of as men. Responsibility for the anirmani
In In tho end 10 laid upon the trial court an
be fury. The trial Judge. on the other han
al smothers his feelings about the judgmeh
to with the reflection that the error on his pl
a. will be corrected by the upper court, INT
g. the vicious circle Is complete, and tudgmon
b. dsspproyod by every Judge who has consl'
as cred a case. are affirmed because no cou
an will exercise its discretion. and Say II
G. wrong"
ct 10 tho Same effect is the language USE
he by Judge Sanford OF New York. In tho ca
lis Of Davis ys. Railway, J, and 81, NJ !
s- 1913, as follows
ur 81 deem It OF special Importance that IA
of rule THAT q verdict should be set aside VINE
a