Bennett v. DC Transit System, Inc.

• Decision Date: 11 January 1962
• Docket Number: No. 16384.,16384.
• Citation: 111 US App. DC 411,298 F.2d 325
• Parties: Edna M. BENNETT, Appellant, v. D. C. TRANSIT SYSTEM, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

111 US App. DC 411, 298 F.2d 325 (1962)

Edna M. BENNETT, Appellant, v. D. C. TRANSIT SYSTEM, INC., Appellee.

No. 16384.

United States Court of Appeals District of Columbia Circuit.

Argued November 16, 1961.

Decided January 11, 1962.

Mr. Edward J. Ryan, Washington, D. C., for appellant.

Mr. Frank F. Roberson, Washington, D. C., with whom Mr. David N. Webster, Washington, D. C., was on the brief, for appellee. Mr. James Belson, Washington, D. C., also entered an appearance for appellee.

Before FAHY, DANAHER and BASTIAN, Circuit Judges.

PER CURIAM.

Appellant plaintiff filed suit in the District Court for damages against appellee defendant for personal injuries. At the close of all the evidence, motion was made by defendant for a directed verdict on the ground that plaintiff had not made out her case. The court took the motion under advisement pending the jury's verdict, in accordance with Fed.R. Civ.P. 50(b), 28 U.S.C.A.¹ The verdict of the jury was for plaintiff.

Thereafter defendant filed its timely motion for judgment n. o. v. or, in the alternative, should the motion for judgment n. o. v. be denied, then for new trial. The ground for the motion for judgment n. o. v. was that "upon the record as a whole there was no substantial evidence to support the verdict, but at most a mere scintilla which is inadequate under the authorities for submission of a case to the jury." The ground for the alternative motion for a new trial was that the verdict was against the weight of the evidence.

After argument some two weeks later, the trial judge ruled on both motions.² He granted the motion for judgment n. o. v. on the ground stated and further provided that "the motion for new trial be granted on the ground that the verdict in favor of plaintiff was against the greater weight of the evidence, this ruling to take effect only in the event that the ruling of the Court on the motion for judgment is reversed on appeal."

This appeal followed.

An examination of the record convinces us that, contrary to defendant's contention, there was more than "a mere scintilla" of evidence to support the verdict. Tested in light of the standards we have spelled out, we are satisfied that the action of the court in granting the judgment n. o. v. must be reversed.³

On the other hand, the ruling of a trial judge on an alternative motion for a new trial is ordinarily not reviewable,⁴ so that where the judgment n. o. v. is reversed, as here, the case thereafter will be governed by the trial judge's award of the new trial. It is appropriate that his discretion be respected, for he is entitled to "an opportunity, after all his rulings have been made and all the evidence has been evaluated, to view the proceedings in a perspective peculiarly available to him alone."⁵

It is clear from the colloquy of record here that the trial judge and counsel for defendant anticipated possible reversal of the judgment n. o. v. Perhaps the trial judge thought that, in that event, plaintiff should be given an opportunity to "fill the crucial gap in the evidence"⁶ between preponderance and what he thought was a mere scintilla. Perhaps he thought he had erred in admitting hearsay testimony from the claims adjuster and the division superintendent. Perhaps he thought he should have excluded as too remote motion pictures taken by an investigator more than a year after the accident and the running comments by the witness in answer to counsel for the defendant. Perhaps, with a corrected record in mind, he concluded different weight would attach to evidence he first deemed not entitled to credence. In any event, he decided there should be a new trial, as well he might.⁷

The judgment n. o. v. is reversed and the case will be remanded for a new trial.

FAHY, Circuit Judge (concurring in part, dissenting in part).

I concur in reversing the judgment entered in favor of the Transit Company notwithstanding the verdict of the jury in favor of the plaintiff. I would not, however, grant a new trial but would direct reinstatement of the jury verdict and entry of judgment for the plaintiff. The crucial question was whether the jury would credit the testimony of the plaintiff and her small son as to the happening of the accident when they were unsuccessfully attempting to board a bus of the Company. This testimony in substance was that the door of the bus temporarily caught plaintiff's leg. The bus driver did not see the alleged accident, and neither he nor any passenger who remained on the bus reported it. Plaintiff, however, notified the Company the same day, and the matter was then investigated by the Company.

The defense was an attack on the credibility of plaintiff and her child, so that the case posed a classical jury question, which the jury answered. It is in derogation of the jury function, as it seems to me, for the conclusion they reached, attributable to no error of law, not to be given effect. See Lind v. Schenley Industries, Inc., 278 F.2d 79, 87-91 (3rd Cir., 1960), cert. denied 364 U.S. 835, 81 S.Ct. 78, 5 L.Ed.2d 60, where, following a thorough discussion, the opinion states in part:

"But where no undesirable or pernicious element has occurred or been introduced into the trial and the trial judge nonetheless grants a new trial on the ground that the verdict was against the weight of the

...