Marsh v. Illinois Cent. R. Co., No. 12601.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, SIBLEY and WALLER, Circuit
Citation175 F.2d 498
PartiesMARSH v. ILLINOIS CENT. R. CO. ILLINOIS CENT. R. CO. v. MARSH.
Docket NumberNo. 12601.
Decision Date08 July 1949

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.


175 F.2d 499

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...

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127 practice notes
  • Mendoza v. Borden Inc., No. 97-5121
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 16 Noviembre 1999
    ...trial judge in considering those motions does not exercise discretion, but makes a ruling of law . . . ." Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500 (5th Cir. 1949)5 (emphasis added). In contravention of this clearly articulated judicial role, the majority repeatedly engages in its o......
  • George v. La. Dep't of Pub. Safety & Corr., CIVIL ACTION NO. 14–CV–00338–JWD–RLB
    • United States
    • U.S. District Court — Middle District of Louisiana
    • 29 Septiembre 2017
    ...of law: "[w]hether there is any evidence which, if believed, would authorize a verdict against movant." Marsh v. Illinois Cent. R. Co. , 175 F.2d 498, 500 (5th Cir. 1949). "A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor......
  • Allen v. Texas & Pacific Ry. Co., Civ. A. No. 2873.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 5 Marzo 1951
    ...Supp. 528 cases of Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; and, Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498, we should now proceed, in order to dispatch the case on appeal, with the alternative plea for a new trial, though it be inconsistent with ......
  • Campbell's Estate, In re, No. 4159
    • United States
    • Supreme Court of Hawai'i
    • 31 Mayo 1963
    ...v. Mathews Trucking Corp., 205 F.2d 837 (8th Cir.). Other courts have entertained a cross-appeal. See Marsh v. Illinois Cent. R. R. Co., 175 F.2d 498 (5th Cir.); Annot., 69 A.L.R.2d 449, 531. However, insofar as cross-assignments have been permitted without a cross-appeal this is an excepti......
  • Request a trial to view additional results
127 cases
  • Mendoza v. Borden Inc., No. 97-5121
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 16 Noviembre 1999
    ...trial judge in considering those motions does not exercise discretion, but makes a ruling of law . . . ." Marsh v. Illinois Cent. R. Co., 175 F.2d 498, 500 (5th Cir. 1949)5 (emphasis added). In contravention of this clearly articulated judicial role, the majority repeatedly engages in its o......
  • George v. La. Dep't of Pub. Safety & Corr., CIVIL ACTION NO. 14–CV–00338–JWD–RLB
    • United States
    • U.S. District Court — Middle District of Louisiana
    • 29 Septiembre 2017
    ...of law: "[w]hether there is any evidence which, if believed, would authorize a verdict against movant." Marsh v. Illinois Cent. R. Co. , 175 F.2d 498, 500 (5th Cir. 1949). "A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor......
  • Allen v. Texas & Pacific Ry. Co., Civ. A. No. 2873.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • 5 Marzo 1951
    ...Supp. 528 cases of Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147; and, Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498, we should now proceed, in order to dispatch the case on appeal, with the alternative plea for a new trial, though it be inconsistent with ......
  • Campbell's Estate, In re, No. 4159
    • United States
    • Supreme Court of Hawai'i
    • 31 Mayo 1963
    ...v. Mathews Trucking Corp., 205 F.2d 837 (8th Cir.). Other courts have entertained a cross-appeal. See Marsh v. Illinois Cent. R. R. Co., 175 F.2d 498 (5th Cir.); Annot., 69 A.L.R.2d 449, 531. However, insofar as cross-assignments have been permitted without a cross-appeal this is an excepti......
  • Request a trial to view additional results

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