Herb v. Pitcairn

Citation36 N.E.2d 555,377 Ill. 405
Decision Date15 September 1941
Docket NumberNo. 26032.,26032.
PartiesHERB v. PITCAIRN et al.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Action by Victor J. Herb against Norman Pitcairn, and others, for injuries received while the plaintiff was employed by the defendants as a switchman. From a judgment for the defendants, notwithstanding a verdict for the plaintiff, the plaintiff appealed to the Appellate Court, which reversed the judgment and entered judgment on the verdict for the plaintiff, 306 Ill. App. 583, 29 N.E.2d 543. The defendants appeal.

Reversed and remanded, with directions.Appeal from Appellate Court, Fourth District, on Appeal from City Court of Granite City; Wm. P. Boynton, Judge.

Warnock, Williamson & Burroughs, of Edwardsville, for appellants.

Merritt U. Hayden, Mack D. Eagleton, and Roberts P. Elam, all of St. Louis, Mo., and McGlynn & McGlynn, of East St. Louis, for appellee.

SMITH, Justice.

Appellee brought this suit in the city court of Granite City against appellants to recover damages for personal injuries received while employed by appellants as a switchman. The accident occurred in the switching yards of the Staley Manufacturing Company at Decatur, Illinois. The complaint on which the case was tried alleged that appellee was employed by appellants as a switchman; that appellants, as receivers of the railway company, were operating as a common carrier; that at the time of the injury both appellee and appellants were engaged in interstate commerce and were subject to the provisions of the Federal Employer's Liability Act. 45 U.S.C.A. §§ 51-59. It was further alleged that the injuries to appellee resulted from a violation, by appellants, of the Federal Safety Appliance Act. 45 U.S.C.A. § 12. At the close of plaintiff's evidence appellants moved the court to instruct the jury to return a verdict in favor of the defendant. Ruling on this motion was reserved by the court. The motion was renewed at the close of all the evidence. The ruling on this motion was likewise reserved and the cause was submitted to the jury. The jury returned a verdict in the sum of $30,000 in favor of appellee. Thereafter, the court sustained the motion for a directed verdict and entered judgment non obstante veredicto in favor of the defendants and in bar of the action. In sustaining the motion for a directed verdict, and entering judgment non obstante veredicto, the court followed the practice authorized by section 68(3)a of the Civil Practice Act. Ill.Rev.Stat.1939, chap. 110, par. 192(3)a. From that judgment appellee perfected an appeal to the Appellate Court for the Fourth District. That court reversed the judgment of the trial court and entered judgment on the verdict in favor of appellee and against appellants under sub-paragraph (3)c of section 68 of the Civil Practice Act, Ill.Rev.Stat.1939, chap. 110, par. 192(3)c.

Since this case was decided by the Appellate Court, this court, in Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897, held section 68(3)c of the Civil Practice Act invalid for the reason that it was an attempt to confer original jurisdiction on a court of review and deprives a litigant of the right to the judgment of the trial court upon all questions which may properly be raised by a motion for a new trial, in violation of the constitution. In view of this holding it is unnecessary to consider any other question in this case.

Appellants, as defendants in the trial court, had the right to file a motion for a directed verdict in their favor. This they did at the close of the plaintiff's evidence and again at the close of all the evidence in the case. Under the above section of the Civil Practice Act the court had the right to reserve a ruling on that motion and submit the case to the jury. A verdict having been returned in favor of the plaintiff, the court was then required to pass on the motion for a directed verdict. If the court then decided, as a matter of law, that appellants were entitled to a directed verdict, it was the duty of the court to enter judgment non obstante veredicto. The practice followed by the trial court was strictly...

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16 cases
  • Herb v. Pitcairn Belcher v. Louisville Co, s. 24
    • United States
    • United States Supreme Court
    • February 5, 1945
  • Herb v. Pitcairn
    • United States
    • Supreme Court of Illinois
    • November 12, 1943
  • Roth v. Northern Assur. Co.
    • United States
    • Supreme Court of Illinois
    • November 24, 1964
    .......' (46 Ill.App.2d at 263, 196 N.E.2d at 394.) The appellate court felt that this conclusion was required by the opinions of this court in Herb v. Pitcairn, 384 Ill. 237, 51 N.E.2d 277; 392 Ill. 151, 64 N.E.2d 318; 392 Ill. 138, 64 N.E.2d 519. It therefore disregarded the Sachs case, which ......
  • Roth v. Northern Assur. Co., Gen. No. 48999
    • United States
    • United States Appellate Court of Illinois
    • February 6, 1964
    ......        The two foregoing cases are very forceful, but we are confronted with the case of Herb v. Pitcairn, 384 Ill. 237, 51 N.E.2d 277. In that case the plaintiff appealed from a judgment of the circuit court of Madison county sustaining the ......
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