Marsh v. Illinois Cent. R. Co.

• Decision Date: 08 July 1949
• Docket Number: No. 12601.,12601.
• Citation: 175 F.2d 498
• Parties: MARSH v. ILLINOIS CENT. R. CO. ILLINOIS CENT. R. CO. v. MARSH.
• Court: U.S. Court of Appeals — Fifth Circuit

175 F.2d 498 (1949)

MARSH v. ILLINOIS CENT. R. CO. ILLINOIS CENT. R. CO. v. MARSH.

No. 12601.

United States Court of Appeals Fifth Circuit.

July 8, 1949.

E. L. Brunini, Vicksburg, Miss., and Frank E. Everett, Jr., Vicksburg, Miss., for appellant and cross-appellee.

R. L. Dent, Vicksburg, Miss., and William F. McGehee, Vicksburg, Miss., for appellee and cross-appellant.

Before HUTCHESON, SIBLEY and WALLER, Circuit Judges.

SIBLEY, Circuit Judge.

Marsh, called herein appellant, a fireman on a switch engine, sued for a personal injury alleged to have been caused by negligence in maintaining the switching track and the apron covering the coupling between the engine and tender, on which apron he stood in firing. At the conclusion of the evidence the defendant's motion for an instructed verdict was denied, and a verdict for plaintiff was returned. The defendant then moved for a judgment notwithstanding the verdict, or if that should be denied, for a new trial on the ground, among others, that the verdict was against the overwhelming weight of the evidence. The judge held: "The weight of the evidence is so overwhelmingly against the plaintiff that as a matter of law it becomes the duty of the court to withdraw the case from the jury and enter a judgment for the defendant. The motion for a new trial will be denied, and the motion of the defendant for a judgment notwithstanding the verdict of the jury will be entered for the reason that the motion for a directed verdict should have been sustained." The defendant then moved that the judgment be so amended as to grant a new trial in the event of reversal of the judgment notwithstanding the verdict according to a form suggested in 3 Moore's Federal Practice, Sect. 50.03 and Suppl., and 4 Id.Sect. 50.05 p. 459. This motion to amend was overruled, the judge holding: "It is my judgment that the evidence was insufficient to go to the jury, but if I am wrong in that, then I do not think a new trial should be granted as there were no other errors of law." Appeal is taken by plaintiff from the judgment notwithstanding the verdict, and a cross-appeal by the defendant from the refusal of a new trial.

1. This suit, based on negligence, is in its substance one at common law, though modified by federal statute. The Seventh Amendment of the Constitution governs: "In suits at common law, where the value in controversy shall exceed twenty dollars, 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 common law". The last clause is a definite limitation on federal appellate courts, because at common law an appellate court could not revise a verdict, and could award a venire de novo only for error in the trial; but the common law power of the trial judge to grant a new trial in his discretion, irrespective of error and merely because he does not think the verdict right, is fully preserved. Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 7 L.Ed. 732. This matter was fully dealt with in the Sixth Circuit by successive opinions by Judges Lurton, Taft and Harlan, in Mt. Adams & E. P. Inclined R. Co. v. Lowery, 74 F. 463; Felton v. Spiro, 78 F. 576; and Travelers Ins. Co. v. Randolph, 78 F. 754, The same distinctions were maintained by this court in Howard v. Louisiana & A. R. Co., 5 Cir., 49 F.2d 571. A motion for a directed verdict, or for a judgment notwithstanding the verdict under Rule of Civil Procedure 50, 28 U.S.C.A., raises a...