Davis v. Yellow Cab Company of St. Petersburg, 15289.
| Decision Date | 11 May 1955 |
| Docket Number | No. 15289.,15289. |
| Citation | 220 F.2d 790 |
| Parties | John Leon DAVIS, Appellant, v. YELLOW CAB COMPANY OF ST. PETERSBURG, Inc., Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lloyd D. Martin, St. Petersburg, Fla., for appellant.
T. Paine Kelly, Jr., Tampa, Fla., Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., of counsel, for appellee.
Before HUTCHESON, Chief Judge, TUTTLE, Circuit Judge, and DAWKINS, District Judge.
This is an appeal from an instructed verdict in a suit for damages resulting from the collision, in a highway accident, of plaintiff's car with one of defendant's taxicabs. It was consolidated for trial with a suit brought by one Robbins against the same defendant, involving the same accident, and when plaintiff had rested, defendant in each case moved for and obtained a directed verdict.
Appealing from the judgment on the verdict in his case, plaintiff Davis is here putting forward as his main ground of error that there was evidence to take the case to the jury upon whether the defendant was negligent and that the court erred in instructing a verdict as to him. As subordinate grounds of error, he urges upon us: (1) the consolidation of the two cases for trial; (2) the refusal of his counsel's request, made after the motion for an instructed verdict had been made and granted, to sever this case from the Robbins case; and (3) the refusal of his motion for new trial based upon newly discovered evidence as embodied in affidavits tending to impeach the testimony of the taxicab driver by showing an interested motive for it.
Subordinate grounds of error Nos. 1 and 2 may be quickly disposed of by saying: (1) that the record shows no objection to the consolidation of the cases but a complete acquiescence therein; (2) that if the statement1 of plaintiff's counsel, made after the court had directed a verdict, may be regarded as a motion for severance instead of, as it clearly appears to be, a request for further consideration by the court of the motion to direct a verdict, it came too late; and (3) it was completely without merit. Rule 42(a), Rules of Civil Procedure, 28 U.S.C.A., expressly provides for the consolidation of cases of this kind as "actions involving a common question of law or fact", and the trial court had a large discretion in the matter which will not be interfered with except in a clear case of abuse, which is wholly absent here.
The third ground, the denial of the motion for newly discovered evidence, is no better taken. It is the settled rule in State and Federal Courts alike, "(1) That a motion for new trial is directed to the judicial discretion of the trial court, and its ruling thereon will not be disturbed in the absence of a clear abuse of that discretion; (2) that a motion for new trial on the ground of newly discovered evidence may not be granted unless (a) the facts discovered are of such a nature that they...
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