Channell v. Sampson, 3466.

Citation108 F.2d 315
Decision Date29 December 1939
Docket NumberNo. 3466.,3466.
PartiesCHANNELL v. SAMPSON.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Hubert C. Thompson, of Boston, Mass. (John C. Twomey, of Boston, Mass., on the brief), for appellant.

James T. Connolly, of Boston, Mass. (Walter R. Donovan, of Boston, Mass., on the brief), for appellee.

Before WILSON and MAGRUDER Circuit Judges, and PETERS, District Judge.

MAGRUDER, Circuit Judge.

This is a suit for personal injuries received in a collision between a car driven by defendant's testator and a car in which the plaintiff was riding in the company of her husband, who was driving.

Plaintiff had a verdict and judgment below. The sole question raised on this appeal is whether the trial judge was in error in ruling that there was sufficient evidence for the jury upon the issue of negligence, the formal motions made by the defendant under Rule 50(b), Rules of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c, having been denied.

Passing upon the motion for a directed verdict, the trial judge had to exercise a judgment on the facts in determining whether there was substantial evidence from which it would not be unreasonable for the jury to infer negligence. Similarly, in reviewing the trial judge's action on such a motion, the appellate court must exercise a judgment on the facts, but from a less advantageous viewpoint. In this case, for example, the testimony of one of the eyewitnesses was in elaboration of diagrams which he was drawing on a blackboard in the courtroom, and read in print the testimony is quite unintelligible. In many borderline cases, the appellate court might uphold a ruling either way, because it could not say, from a reading of the cold record, that the trial judge was clearly wrong in his judgment as to the sufficiency of the evidence. The present might indeed be such a case. However that may be, we do decide that the trial judge was not in error in ruling as he did that there was sufficient evidence of negligence to go to the jury.

Plaintiff's car, a Buick, was proceeding northward on a main highway on Christmas afternoon. A misty rain or sleet was falling, which made the way very slippery. A Ford car, driven by defendant's testator, was approaching from the opposite direction. A third car, travelling ahead of the Ford, started to skid across the highway to the left. According to the plaintiff's witnesses, the driver of the Buick had to swerve to the left to avoid being hit by this...

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9 cases
  • Sampson v. Channell
    • United States
    • U.S. Court of Appeals — First Circuit
    • 3 Junio 1940
    ...the plaintiff and his wife, who was a passenger. The wife sued and recovered judgment. We affirmed that judgment in Channell v. Sampson, Dec. 29, 1939, 1 Cir., 108 F.2d 315. In this, the husband's action, the jury found specially that the plaintiff's injury was caused by the negligence of d......
  • Marshall v. Nugent
    • United States
    • U.S. Court of Appeals — First Circuit
    • 13 Mayo 1955
    ...a judgment on the facts, in reviewing whether the trial judge should or should not have left the issue to the jury. See Channell v. Sampson, 1 Cir., 1939, 108 F.2d 315. Exercising that judgment on the facts in the case at bar, we have to conclude that the district court committed no error i......
  • New York, New Haven & Hartford Railroad Co. v. Dox
    • United States
    • U.S. Court of Appeals — First Circuit
    • 22 Noviembre 1957
    ...since it is for the court to decide, but it is really a preliminary exercise of judgment on the facts. As we said in Channell v. Sampson, 1939, 1 Cir., 108 F.2d 315: "Passing upon the motion for a directed verdict, the trial judge had to exercise a judgment on the facts in determining wheth......
  • DE JEAN v. Great American Indemnity Company
    • United States
    • U.S. District Court — Western District of Louisiana
    • 6 Diciembre 1954
    ...A.L.R. 394, certiorari denied 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415, second case, new trial denied D.C., 27 F.Supp. 213, affirmed 1 Cir., 108 F.2d 315, first 1 We do not mean to ignore Mr. D'Avy's testimony, but we, like him, have to admit that his (Mr. D'Avy's) opinion was somewhat a ......
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