Linkous v. Virginian Ry. Co.
Decision Date | 02 June 1917 |
Docket Number | 1522. |
Parties | LINKOUS v. VIRGINIAN RY. CO. |
Court | U.S. Court of Appeals — Fourth Circuit |
W. L Welborn, of Roanoke, Va. (S. H. Hoge and Welborn & Jamison all of Roanoke, Va., on the brief), for plaintiff in error.
H. T Hall, of Roanoke, Va., and G. A. Wingfield, of Norfolk, Va (Hall & Apperson, of Roanoke, Va., on the brief), for defendant in error.
Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.
This case was brought here by writ of error at the November term, 1915; the lower court having rendered judgment based on a verdict of the jury in favor of the plaintiff below. This court reversed the judgment, holding that the lower court, upon the whole evidence, should have directed the jury to return a verdict in favor of the defendant. A new trial was granted, and the case was remanded to the court below for further proceedings. The case was heard upon the same evidence as that of the former trial. The learned judge directed a verdict in favor of the defendant in pursuance of the rule announced by this court.
Counsel for plaintiff below insist:
'That the former judgment of this court should be reviewed, reversed, and annulled, and that the judgment in favor of this plaintiff in error in the District Court on first trial for the sum of $8,541 should be affirmed, with interest and costs.'
This question has been decided adversely to the contention of plaintiff in error in numerous cases. In the case of Roberts v. Cooper, 20 How. 467, 15 L.Ed. 969, the Supreme Court, in referring to this point, said:
Also, in the case of Woodruff v. Yazoo & M.V.R. Co., 222 F. 29, 137 C.C.A. 567, the Circuit Court of Appeals for the Fifth Circuit, in referring to a ruling of that court when a case was there on a former hearing, said:
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...C. A. 504, the writers are led to the conclusion that on the facts thus far assumed to exist the plaintiff cannot recover. In Linkous v. Virginian Railway Company the facts were peculiarly like the controlling facts in the instant case, and there the Circuit Court of Appeals of the Fourth C......
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... ... v. King, 170 F. 923, 96 C.C.A ... 139), and it has been so declared in the following Circuit ... Courts of Appeals: Fourth Circuit, Linkous v. Virginia ... Ry. Co., 242 F. 916, 155 C.C.A. 504; Fifth Circuit, ... Woodruff v. Yazoo Co., 222 F. 30, 137 C.C.A. 567; ... McClellan v ... ...
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Dunagan v. Appalachian Power Co.
...bring myself to the conclusion that there is such new material evidence as warrants a departure from this rule. Linkous v. Virginian Ry. Co. (C. C. A. 4th) 242 F. 916, certiorari denied 245 U. S. 649, 38 S. Ct. 10, 62 L. Ed. 530; First National Bank of Oxford v. Old Dominion Trust Co. (C. C......
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Cromwell v. Simons, 88.
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