Een v. Consolidated Freightways

• Decision Date: 11 March 1955
• Docket Number: No. 15137.,15137.
• Citation: 220 F.2d 82
• Parties: Clarence O. EEN, a person of unsound mind and an incompetent, by Shirley A. Een, his guardian ad litem, and Shirley A. Een, individually, and as trustees for the State of North Dakota, doing business as the North Dakota Workmen's Compensation Bureau, and as the North Dakota Workmen's Compensation Fund; also North Dakota Workmen's Compensation Bureau, Appellants, v. CONSOLIDATED FREIGHTWAYS, a foreign corporation; and Walter Dulski, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F.2d 82 (1955)

Clarence O. EEN, a person of unsound mind and an incompetent, by Shirley A. Een, his guardian ad litem, and Shirley A. Een, individually, and as trustees for the State of North Dakota, doing business as the North Dakota Workmen's Compensation Bureau, and as the North Dakota Workmen's Compensation Fund; also North Dakota Workmen's Compensation Bureau, Appellants, v. CONSOLIDATED FREIGHTWAYS, a foreign corporation; and Walter Dulski, Appellees.

No. 15137.

United States Court of Appeals, Eighth Circuit.

March 11, 1955.

COPYRIGHT MATERIAL OMITTED

L. H. Oehlert, Fargo, N. D. (Nilles, Oehlert & Nilles, Fargo, N. D., and Paul M. Sand, Asst. Atty. Gen. for North Dakota, were with him on the brief), for appellants.

J. F. X. Conmy, Fargo, N. D. (Hyland, Foster & Conmy, Bismarck, N. D., were with him on the brief), for appellees.

Before GARDNER, Chief Judge, and JOHNSEN, and COLLET, Circuit Judges.

GARDNER, Chief Judge.

This was an action by Clarence O. Een brought by his guardian ad litem and by his wife, Shirley A. Een, individually, to recover damages on account of personal injuries suffered by said Clarence O. Een as the result of a collision between an automobile driven by him and a tractor-trailer owned by Consolidated Freightways and driven by Walter Dulski. The collision was alleged to have occurred on U. S. Highway No. 10 at a point on said highway three-quarters of a mile south of the town of Buffalo, North Dakota, on the 11th day of March, 1953, at the hour of 7:00 o'clock P. M. It was alleged that the driver of the tractor-trailer was negligent in that he drove said vehicle onto and upon the northbound lane upon which said Een was driving his automobile and that he failed to keep a proper lookout and that he drove at an excessive rate of speed and that as a result of such negligent conduct the tractor-trailer collided with the automobile then being driven by said Een in the northbound lane of said highway inflicting serious personal injuries and causing him great pecuniary damage set out and described in the complaint. The defendants answered denying all acts of negligence, admitting the ownership of the tractor-trailer, admitting that the defendant Dulski was at the time of the accident in the employ of Consolidated Freightways and affirmatively pleaded that the accident was caused or contributed to by the negligence of the plaintiff Een.

At and prior to the time of receiving his injuries here complained of Clarence O. Een was in the employ of the North-western Bell Telephone Company in the capacity of an engineer. In the course of his employment he was driving a Chevrolet automobile belonging to his employer in a northerly direction on a jog in U. S. Highway No. 10 which is a hard surfaced highway extending generally east and west through the State of North Dakota. The defendant Dulski in the course of his employment was driving a tractor-trailer belonging to Consolidated Freightways south on the southbound lane of said highway. It was foggy and misting and raining slightly and about 7:00 o'clock P. M. the two vehicles collided as hereinbefore recited. It was the claim of the plaintiffs that the collision occurred in the northbound lane of the highway and it was the claim of the defendants that it occurred in the southbound lane and evidence was introduced by the respective parties tending to support these conflicting contentions. At the close of all the testimony the defendants interposed a motion for a directed verdict. The court reserved ruling on the motion and the case was submitted to the jury on instructions to which no exceptions were saved by either of the parties. The jury returned a verdict in favor of defendants and against the plaintiffs on all the issues and on this verdict the court entered judgment dismissing the action on its merits. From the judgment so entered plaintiffs have appealed and seek reversal on the following grounds:

1. The trial court committed reversible and prejudicial error in admitting in evidence the testimony of the defendants' witness, John Holcomb, to the effect that, in his opinion and judgment, the collision or impact occurred in the west lane of traffic.

2. The trial court committed further reversible and prejudicial error in admitting in evidence defendants' Exhibit E.

3. That in view of all of the undisputed evidence and the overwhelming weight of evidence in favor of the plaintiffs on the issue of liability, the trial court, in the interests of justice and in the exercise of his sound judicial discretion, should have granted plaintiffs a new trial and erred in failing to do so.

We shall not follow the order in which plaintiffs state their grounds on which they seek reversal but instead shall first consider their third contention. The effect of this contention is to challenge the sufficiency of the evidence to sustain a verdict for the defendants. In their statement of the case and of the alleged facts which they urge as sustaining their contention that the evidence is insufficient to sustain the verdict as rendered counsel overlook and wholly disregard the rule that the evidence must be viewed in a light most favorable to the prevailing party, that all conflicts in the evidence have been resolved by the verdict of the jury in favor of the prevailing party and that the prevailing party is entitled to the benefit of all favorable inferences which may reasonably be drawn from the facts proven. When so viewed if there is substantial evidence supporting the verdict it must be sustained.

But the short answer to the contention that the evidence is insufficient to sustain the verdict is that the question is not before us for decision. Plaintiffs did not at the close of the case interpose a motion for a directed verdict but the question is sought to be presented by charging that the court erred in denying their motion for a new trial.

This is an appellate court with jurisdiction to consider on appeal alleged errors of law committed by the trial court. It can only consider the question of the sufficiency of the evidence when that has been made a question of law and this can only be done by interposing a motion for a directed verdict at the close of all of the evidence. Dinet v. Rapid City, S. D., 8 Cir., 222 F. 497; Fricke v. General Accident, Fire & Life Assur. Corp., 8 Cir., 59 F.2d 563; Mutual Benefit Health & Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856; Mutual Ben. Health & Accident Ass'n v. Thomas, 8 Cir., 123 F.2d 353; Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159. This rule has been oft repeated by this court. Thus, as early as 1915, in an opinion by Judge Carland speaking for this court in Dinet v. Rapid City, S. D., supra 222 F. 499, it was said:

"It is claimed there is no evidence to support the verdict. This question is not before us, as it was in no way presented to the trial court during the trial. It was presented in a motion for a new trial, but the ruling of the trial court on that motion is not reviewable here. The reason for this has been so many times stated that we refrain from again repeating it."

The question was presented to us in Harnik v. Lilley, supra 167 F.2d 160, and we there took occasion to review some of the many decisions of this court on the question. In the course of the opinion in that case it is among other things said:

"* * * When, however, there is no request for a directed verdict, the question as to the sufficiency of the evidence to sustain the verdict or judgment is not reviewable. Amendment VII of the Federal Constitution provides, among other things, that, `The right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.\'

"The only mode known to the common law to re-examine facts tried by a jury was the granting of a new trial by the court where the issue was tried. This being a law action, we have appellate jurisdiction only, and the only way of securing a review of the facts is by interposing a motion for a directed verdict at the close of all the evidence and securing a ruling thereon. This presents a question of law. Dinet v. Rapid City, 8 Cir., 222 F. 497; Minnehaha County S. D. v. Kelley, 8 Cir., 150 F.2d 356; Mutual Benefit Health & Accident Ass\'n v. Bowman, 8 Cir., 99 F.2d 856; Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175; Home Ins. Co. of New York v. Tydal Co., 5 Cir., 157 F.2d 851.

* * * * * *

"Speaking of the necessity of interposing a motion for a directed verdict where the sufficiency of the evidence is to be challenged, we said in Emanuel v. Kansas City Title & Trust Co., supra, `But if the plaintiff intended to appeal in case the verdict went against him and to challenge the sufficiency of the evidence to support a judgment for the defendant, it was essential that he request the trial court to direct the jury to return a verdict in his favor and that he secure from that court a ruling upon his request. In the absence of such a request and ruling, the question of the sufficiency of the evidence to support the verdict and judgment is not subject to review by this Court.\'

"In Mutual Benefit Health & Accident Ass\'n v. Bowman, supra, which was a law action tried to the court without a jury, we said: `There was no motion for judgment, for findings, for declaration of law, nor other motion challenging the sufficiency of the evidence to sustain a judgment in favor of the plaintiff, and the court made no special findings. As this is an action at law, we have, under the Constitution (Amendment VII), U.S.C.A.Const. Amend. 7, no jurisdiction to review or reexamine the facts, but can consider only questions of law. In the absence of a motion for judgment in favor of defendant, or other similar proceeding challenging the sufficiency of the evidence, no question of law is presented for our

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