Cincinnati Traction Co. v. Durack

• Citation: 78 Ohio St. 243,85 N.E. 38
• Parties: CINCINNATI TRACTION CO. v. DURACK.
• Decision Date: 19 May 1908
• Court: United States State Supreme Court of Ohio

78 Ohio St. 243
85 N.E. 38

CINCINNATI TRACTION CO.
v.
DURACK.

Supreme Court of Ohio.

May 19, 1908.

Error to Circuit Court, Hamilton County.

Action by one Durack against the Cincinnati Traction Company. Judgment for plaintiff was reversed by the circuit court, and a new trial granted, and from so much of the order as granted the new trial, defendant brings error. Affirmed.

Syllabus by the Court

Where, on the trial of a civil action, the defendant at the close of plaintiff's evidence moves for a verdict thereon in his favor, and on excepting to the decision of the court overruling said motion, introduces evidence to support his grounds of defense, and rests without renewing the motion at the close of all the evidence, the exception is deemed to be waived, and it is no longer a predicate for error in a reviewing court.

[Ohio St. 243]Kinkead, Rogers & Ellis, for plaintiff in error.

Dudley V. Sutphin and Walter A. De Camp, for defendant in error.

PRICE, C. J.

The defendant in error brought suit in the court of common pleas against the [Ohio St. 244]plaintiff in error, to recover damages sustained by wrongfully causing the death of the intestate, Michael O'Rourke Durack, who at the time he was injured was employed and acting as a conductor on one of the cars of the company. The petition sets out fully several particular negligent acts and omissions of duty, which caused the death of the deceased. It is not necessary to restate here the facts alleged in the amended petition in order to determine the question presented for our consideration. The traction company answered, and denied all the allegations of the amended petition, except that it is a corporation under the laws of Ohio, and a common carrier of passengers for hire in the city of Cincinnati. The answer alleges that the injuries sustained by the deceased were due to his negligence and want of care. This averment is denied by a reply. The case went to trial, and at the close of the plaintiff's evidence the company moved the court to direct a verdict in its favor, which motion was overruled, and the company excepted. Having so excepted, it proceeded to make out its defense, and introduced its evidence and rested, without renewing its motion for a directed verdict. The court instructed the jury, who in due time returned a verdict for the plaintiff, assessing her damages at $6,000. Within the statutory time, the company filed a motion for new trial, assigning the grounds: ‘(1) Said verdict is not sustained by sufficient evidence, and is contrary to law. (2) The court erred on the trial in the following particulars, to which the defendant at the time excepted: (a) In admitting evidence[Ohio St. 245]offered by the plaintiff and objected to by defendant; (b) in refusing the motion of defendant to strike out certain testimony offered upon behalf of the plaintiff; (c) in overruling the motion of the defendant to instruct the jury to return a verdict for the defendant; (d) in refusing to admit certain evidence offered by the defendant.’ This motion was overruled, and judgment rendered on the verdict. The company entered its exception. A bill of exceptions was prepared, allowed, and filed, and therewith a petition in error in the circuit court, where the case was heard on error. The following entry shows the result of the proceeding in the latter court: ‘The said court [common pleas] erred in overruling the motion to direct a verdict for the defendant below, made at the close of the evidence offered by the plaintiff below; that the verdict is not sustained by sufficient evidence. * * *’ The circuit court reversed the judgment of the court of common pleas, granted defendant a new trial, and issued a mandate to the court below to carry the judgment of reversal and for costs into execution. The traction company excepted ‘to so much of the foregoing judgment as grants a new trial to the defendant in error, and remands the cause to the court of common pleas for that purpose, instead of rendering judgment in favor of the plaintiff in error.’ The case is brought here on error to the circuit court and the error assigned in this court is that ‘the said circuit court erred in granting to the said defendant in error a new trial, and in remanding the cause to the said court of common [Ohio St. 246]pleas for that purpose, instead of rendering judgment in favor of this plaintiff in error on the merits of the cause.’ The plaintiff in error prays in its petition ‘that said judgment of said circuit court be modified by a reversal of so much thereof as grants to said defendant in error a new trial, and that this court render final judgment in favor of plaintiff in error. * * *’

From this statement of the case we are inclined to think that the plaintiff in error

[85 N.E. 39]

obtained from the circuit more than its dues. That court found that the verdict was not sustained by sufficient evidence, and it also found that the trial court erred in not sustaining the motion of defendant, made when the plaintiff rested, to direct a verdict for the defendant. With those findings the plaintiff in error is content, but it finds fault with the neglect of the circuit court to render judgment in its favor on the motion, after it had held that it should have been sustained, and we are asked to do what the company says the circuit court should have done-sustain the motion and render judgment for plaintiff in error. We are not convinced that we should do this, for the claim in that behalf is founded on an erroneous application of one or more rules of practice, as we will proceed to show. It is plain that if the motion to direct a verdict was well grounded and should have been sustained when...