Jernigan v. Southern Pacific Company
| Decision Date | 15 June 1955 |
| Docket Number | No. 14416.,14416. |
| Citation | 222 F.2d 245 |
| Parties | Lester JERNIGAN, Appellant, v. The SOUTHERN PACIFIC COMPANY, a Delaware Corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank E. Flynn, A. E. Farone, Phoenix, Ariz., for appellant.
Evans, Hull, Kitchel & Jenckes, Ralph J. Lester, Phoenix, Ariz., for appellee.
Before STEPHENS and FEE, Circuit Judges, and WIIG, District Judge.
The plaintiff, Lester Jernigan, instituted this action in the Superior Court of Maricopa County, Arizona, seeking damages for injuries incurred when the automobile in which he was a passenger collided with a box-car which defendant had left standing on a grade crossing. At the request of the defendant, a Delaware corporation, the case was removed to the United States District Court on the basis of diversity of citizenship. At the close of all the evidence the court reserved decision on a motion for a directed verdict made by the defendant, and submitted the case to the jury. Subsequently the jury, being unable to reach a verdict, was discharged. Defendant then moved the court for judgment in accordance with his motion for a directed verdict, and the court granted the motion and ordered judgment for defendant. The procedure was in exact compliance with Rule 50(b) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A.1 The plaintiff appeals The evidence in the case is not included in the record here. In granting the motion, the court made certain comments, the transcription of which were found by the court to be incorrect in several particulars and the court corrected them. The correction of the transcript was brought about as follows: Appellee's counsel wrote a letter to the trial judge setting out what he believed to be errors as to the court's comments. The trial judge agreed and wrote a letter to the clerk of the court instructing him to correct the record in accord therewith, and this was done. The pertinent comments are as follows, with the errors in the original transcript italicized, and the corrections placed in brackets:
Appellant contends that the order was predicated upon the existence of contributory negligence inasmuch as it appeared by the original uncorrected transcript that the court attributed the accident to plaintiff and defendant. If this be so, there is firm basis for the point urged by appellant that the order was made in contravention of the Constitution of the State of Arizona, Section 5, Article 18, of which provides:
"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury."
Appellant objects to the method used in correcting the errors in the transcript and requests us to consider the case on the transcript made by the reporter. The method of correction used was informal and is not to be commended. Yet the corrections, being clerical, were well within the court's power.3
Considering the transcript of the court's statements in its corrected form, it is immediately apparent that, contrary to appellant's contention, the disputed order was not founded on the existence of contributory negligence in violation of the Constitution of the State of Arizona. Clearly the basis of the order was the determination by the court, as a matter of law,4 that no negligence attribut able to defendant had been shown.
The courts of Arizona have repeatedly held that where, as here, the evidence adduced by the plaintiff is insufficient when viewed in its strongest light, to support a verdict, a case of no negligence rather than of contributory negligence is presented, and the court should properly direct a verdict for the defendant.5 Nor can we question the sufficiency of the evidence which resulted in the order below. Since the burden of showing grounds on which a judgment should be reversed rests upon the appellant,6 and the evidence not being here, the appropriateness and validity of the evidence to support the order and the judgment cannot now be questioned.
Affirmed.
1 Rule 50(b) F.R.C.P., Title 28 U.S.C.A.
The power of the federal courts to set aside a verdict and enter contrary judgment has not gone unchallenged. Thus, in Slocum v. New York Life Ins. Co., 1913, 228 U.S. 364, 33 S.Ct. 523, 57 L. Ed. 879, it was held the action of the circuit court in reversing a judgment founded on a verdict and directing a contrary judgment be entered, was violative of the guarantee of the Seventh Amendment of factual determination by jury in civil cases where the value in controversy exceeds twenty dollars.
In Baltimore & Carolina Line v. Redman, 1935, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636, the Supreme Court distinguished between cases where prior to the verdict the trial court expressly reserved decision on the question of the sufficiency of the evidence, and cases such as Slocum in which no such reservation was made, it being held in the former that the Seventh Amendment did not forbid entry of judgment notwithstanding a verdict. The scope of the Redman case was subsequently limited in Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177.
In the above cases the courts were applying the applicable rules of procedure of the state in which they sat. Rule 50 (b) was initiated in an effort to terminate the resulting confusion and to insure regularity, regardless of the locus of the forum in federal treatment of motions for directed verdicts and judgment notwithstanding the verdict.
Under this rule, whenever a motion for a directed verdict is denied or is not granted, the court is automatically deemed to have submitted the case to the jury reserving determination of the legal questions raised by the motion. The practical result is to obviate the necessity for a formal reservation of ruling by the trial court. The provisions of this rule were held constitutional in Berry v. United States, 1940, 312...
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