Bail v. New York, N.H.&H.R. Co.
| Decision Date | 28 March 1911 |
| Citation | 94 N.E. 863,201 N.Y. 355 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | BAIL v. NEW YORK, N. H. & H. R. CO. |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Abraham Bail, administrator of Philip S. Bail, against the New York, New Haven & Hartford Railroad Company. From a judgment of the Appellate Division (135 App. Div. 919,120 N. Y. Supp. 1113), unanimously affirming a judgment setting aside a verdict and dismissing the complaint upon the merits, plaintiff appeals by permission. Affirmed, as modified.
See, also, 136 App. Div. 933,120 N. Y. Supp. 1112.
The court has no power to set aside a general verdict for plaintiff in a personal injury action and dismiss the complaint ‘on the merits.’
[Ed. Note.-For other cases, see Trial, Cent. Dig. s 370; Dec. Dig. s 162.*]
* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
While a nonsuit cannot be moved for after verdict, where the motion for nonsuit is made before verdict, and the decision thereon expressly reserved by the court, with the consent of the parties, until after verdict, the court may, upon setting aside a general verdict for plaintiff, grant a nonsuit.
[Ed. Note.-For other cases, see Trial, Cent. Dig. s 370; Dec. Dig. s 162.*]
* For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes
Thomas J. O'Neill, for appellant.
Charles F. Brown, for respondent.
This action was brought to recover damages resulting from the death of plaintiff's intestate in consequence of the alleged negligence of the defendant.
Upon the trial, at the end of the plaintiff's case the defendant's counsel moved for a dismissal of the complaint, upon the ground that there was no proof of any negligence on the part of the defendant, and that there was no proof of freedom from contributory negligence on the part of the plaintiff's intestate . This motion was denied, and an exception taken. Thereupon the defendant put in its evidence, and at the close thereof the defendant's counsel again renewed his motion, and asked for a dismissal of the complaint upon the same grounds as before stated. A discussion then took place between the attorneys as to the position of the gates at the railroad crossing at the time of the accident, after which the judge remarked that he would defer passing on the motion and submit the question to the jury, and see what the verdict would be. Neither party made any objection to the reservation of the motion, but proceeded to sum up the case, thereby acquiescing in the court's reserving its decision upon the motion. Subsequently the jury rendered a verdict in favor of the plaintiff, and thereupon the defendant's counsel requested the court to set aside the verdict and to pass on the motion reserved at the end of the case. The court then set aside the verdict and granted the motion of the defendant's counsel to dismiss the complaint, on the ground that there was no evidence showing freedom from contributory negligence on the part of decedent. Plaintiff's counsel then took an exception to the ruling of the court.
[1] It is now contended that, the jury having rendered a general verdict, the trial court had no power to set the verdict aside and dismiss the complaint; that, in case the court saw fit to set aside the verdict, it was bound to grant a new trial, and could not dismiss the complaint upon the merits. We agree with the contention of the plaintiff's counsel that the court had no power to dismiss the complaint upon the merits, and in so far as the dismissal upon the merits is concerned the judgment should be modified by striking therefrom the words ‘on the merits.’
[2] We are of the opinion, however, that the court did have the power to set aside the...
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