Holmes v. Ginter Restaurant Co., 2581.
| Decision Date | 05 January 1932 |
| Docket Number | No. 2581.,2581. |
| Citation | 54 F.2d 876 |
| Parties | HOLMES v. GINTER RESTAURANT CO. |
| Court | U.S. Court of Appeals — First Circuit |
Alvah L. Stinson, of Boston, Mass., for appellant.
John W. Coughlin, of Boston, Mass. (Sawyer, Hardy, Stone & Morrison, of Boston, Mass., on the brief), for appellee.
Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.
This is an action of tort brought to recover damages for personal injuries alleged to have been sustained by the plaintiff September 7, 1929, in the restaurant of the defendant, a corporation engaged in operating and conducting restaurants in Boston, Mass., due, as the plaintiff claims, to the negligence of the defendant.
In the District Court the case went to trial before a judge and jury. At the close of the plaintiff's evidence, upon motion of the defendant, the jury was directed to return a verdict for the defendant. Judgment was entered thereon, and the plaintiff appealed to this court.
Plaintiff's single assignment of error is that the court erred in allowing the defendant's motion that upon all the evidence the plaintiff cannot recover, and in directing the jury to return a verdict for the defendant, to which judgment and order of the court the plaintiff duly excepted.
"The defendant contends that it is entitled to the final judgment in its favor (1) on the ground that the plaintiff failed to prove any negligence on the part of the defendant; and (2) on the ground that, if the plaintiff fell in the defendant's restaurant, said fall was due to the natural causes of the action of the weather on the tile floor in the defendant's restaurant; (3) the plaintiff's bill of exceptions was filed late."
It seems proper to dispose of defendant's third contention first. It is based on rule 21 of the Rules of the United States District Court for the District of Massachusetts, which provides as follows:
"Bills of exceptions to any order, ruling or decision of the court shall be filed, and notice in writing thereof given to the adverse party, within twenty days after the order, ruling or decision is made, or in case of rulings made during a trial or hearing on the merits within twenty days after the verdict of the jury or finding by the court, unless the court or judge shall otherwise order; and it or he may for good reason allow a period therefor beyond the term or after judgment."
The verdict of the jury was returned October 21, 1930. The plaintiff's bill of exceptions was filed November 17, 1930. Counsel for the plaintiff, by a letter dated November 12, 1930, forwarded to the defendant's counsel a copy of the proposed bill of exceptions, which was received on November 13, 1930.
It is apparent that the bill of exceptions was filed late. But the rule is a rule of procedure and not a rule of substantive right. The presiding judge may exercise a discretion in the enforcement of a rule. Southern Pacific Co. v. Johnson (C. C. A.) 69 F. 559.
The bill of exceptions was allowed and no exception was noted by the defendant or by the District Judge and no exception was transferred to this court. Only in exceptional cases will this court consider questions not raised before the trial court. The defendant takes nothing by its claim numbered 3.
Testimony introduced by the plaintiff tended to show that she entered the restaurant of the defendant on Saturday, September 7, 1929, at about 3 o'clock in the afternoon, and was directed to a table by one of the waitresses in the defendant's employ; that while on her way to the table, and very near it, her feet slipped from under her, causing her to fall heavily, sustaining the injuries of which she complains; that she noticed nothing extraordinary about the condition of the floor; that after the accident the...
To continue reading
Request your trial
-
Daniel v. Jackson Infirmary
...for the jury. Kroger Grocery Co. v. Monroe, 237 Ky. 60, 34 S.W.2d 929; Bowden v. Kress & Co., 198 N.C. 559, 152 S.E. 625; Holmes v. Ginter Restaurant Co., 54 F.2d 876. motion for new trial was improperly awarded. It has caused this injured lady untold suffering, inconvenience and expense. S......
-
Clark v. Lansburgh & Bro., 5672.
...Great Atlantic & Pacific Tea Co. v. Chapman, 6 Cir., 72 F.2d 112; Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243; Holmes v. Ginter Restaurant, 1 Cir., 54 F.2d 876; Flora v. Great Atlantic & Pacific Tea Co., 1938, 330 Pa. 166, 198 A. 663; Restatement of Law of Torts, § 343. 4 Walker v......
-
Behrendt v. Ahlstrand
...of defendants' motion for judgment notwithstanding the verdict or in the alternative for a new trial. Affirmed. 1 See, Holmes v. Ginter Restaurant Co. (1 Cir.) 54 F.2d 876; Glenn v. W. T. Grant Co., 129 Neb. 173, 260 N.W. 811; Smith v. S. S. Kresge Co., 116 Conn. 706, 164 A. ...
-
Phillips Petroleum Co. v. Hooper, 11894.
...McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442; American Stores Co. v. Murray, 3 Cir., 87 F.2d 894; Holmes v. Ginter Restaurant Co., 1 Cir., 54 F.2d 876. The evidence further established a sufficient causal connection between the defendant's negligence and the explosion, in ......