Follette v. National Tea Company, 71-1341.
| Citation | 460 F.2d 254 |
| Decision Date | 15 May 1972 |
| Docket Number | No. 71-1341.,71-1341. |
| Parties | Robert G. FOLLETTE, Executor of the Estate of Nancy C. Follette, Deceased, Appellee, v. NATIONAL TEA COMPANY, a corporation trading and doing business as LOBLAWS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Eric P. Reif, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellant.
Theodore Goldberg, Arnold D. Wilner, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., for appellee.
Before MAX ROSENN and JAMES ROSEN, Circuit Judges, and VAN ARTSDALEN, District Judge.
This is an appeal from a $10,500. jury verdict in favor of Appellee, Robert G. Follette, against Appellant, National Tea Company, a corporation trading and doing business as LOBLAWS (National). Subsequent to a bifurcated trial on November 25 and November 30, 1970 National moved for Judgment Notwithstanding the Verdict which was denied. The motion for judgment N.O.V. was predicated on the grounds that the verdict was (1) unsupported by the evidence, and (2) contrary to law.
There is no dispute that an accident occurred on July 12, 1966 at approximately 7:30 P.M. as appellee's decedent, Nancy C. Follette, was shopping in the produce and fruit section of National's supermarket on Center Avenue, Pittsburgh, Pennsylvania. Nancy C. Follette, who was 71 years old at that time, subsequently died on November 8, 1966 from causes unrelated to the personal injuries she suffered as a result of the accident. The trial judge so instructed the jury.
National contends that it was not negligent or that its negligence was not the proximate cause of the accident. Appellant further argues that decedent, Nancy C. Follette, was either negligent or contributorily negligent. Ordinarily the issues of negligence, proximate cause and contributory negligence are left to a jury for its factual determination. We have examined the record and agree with Judge Weber's conclusion that "there was sufficient evidence on all the elements of liability to submit the case to the jury." It follows that the verdict also accords with the law.
Furthermore, appellant is in no position to challenge the order denying his motion N.O.V. National failed to move for a directed verdict at the end of plaintiff's case or at the conclusion of the entire case. Having neglected to do so, it is now foreclosed on this appeal from raising the issue of the sufficiency of the evidence. F.R.Civ.P., Rule 50(b). Massaro v. United States Lines Co., 307 F.2d 299, 303 (3d Cir. 1962); Beebe v. Highland Tank & Manufacturing Co., 373 F.2d 886 (3d Cir. 1967), cert. denied sub nom. National Molasses Co. v. Beebe, 388 U.S. 911, ...
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...and instead limited its post-trial and appellate remedies for trial errors to a motion for a new trial. See Follette v. National Tea Co., 460 F.2d 254 (3d Cir.1972) (per curiam). Professors Wright and Miller summarize the law in this respect as A motion for judgment notwithstanding the verd......
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...of the sufficiency of the evidence. See Mallick v. International Bhd. of Elec. Workers, 644 F.2d 228 (3d Cir.1981); Follette v. National Tea Co., 460 F.2d 254 (3d Cir.1972); Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129 (3d Cir.1965); Fed.R.Civ.P. 50(b). However, defendant's couns......
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