Mattoon v. Fremont, E. & M. V. R. Co.
| Decision Date | 03 November 1894 |
| Court | South Dakota Supreme Court |
| Parties | MATTOON v. FREMONT, E. & M. V. R. CO. |
1. A motion to direct a verdict is properly denied when based upon a ground that is unavailable.
2. That the evidence does not preponderate in favor of the plaintiff is not a ground for the direction of a verdict in favor of the defendant.
3. When a judgment and order overruling a motion for a new trial is appealed from, and the ruling of the court on such motion is assigned as error, a record showing that the motion for a new trial was made on a bill of exceptions included therein, which contains a notice of intention to move for a new trial, that specifies and definitely points out the particulars in which the evidence is insufficient to justify the verdict, is sufficient to present that question to this court on appeal.
On rehearing. Petition denied.
For prior report, see 60 N. W. 69.
Upon the petition of respondent for a rehearing, this case is now before us. The opinion of this court reversing the judgment of the trial court, so far as appealed from, is published in 60 N. W. 69. In support of the petition for a rehearing, counsel for plaintiff and respondent maintain that the motion, as made, to direct a verdict in favor of defendant upon certain causes of action at the close of plaintiff's testimony, was in any event properly overruled, because the reason therein assigned, so far as the motion relates to the cow mentioned in the fourth cause of action, constitutes no ground for the direction of a verdict. The part of the motion pertaining to the fourth cause of action, so far as material to a consideration of the point presented, is, in effect, as follows: “Defendant moves the court to direct a verdict *** for the defendant on the fourth cause of action, for the reason that it is necessary for the plaintiff to prove by a preponderance of the testimony that the cow mentioned in said cause of action was struck by defendant's train.” The right of a party to a directed verdict, when proper and timely application therefor is made, imposes a duty upon the court to grant such application; and if, at the close of plaintiff's case, no evidence had been introduced tending to establish the first and fourth causes of action alleged in the complaint, or either of them, and the question as to the right of the defendant had been presented to the court for its decision by a motion directing the attention of the court to the fact that there was no evidence before the jury to support a verdict in plaintiff's favor upon such cause of action, the motion should have been sustained; but a motion to direct a verdict upon the ground, as mentioned in relation to the fourth cause of action, that a cause has not been established by a preponderance of evidence, presupposes a conflict in such evidence, the greater weight or preponderance of which must be ascertained by the jury. The motion, so far as it relates to the first cause of action, was entirely sufficient, and should have been granted.
The motion for a verdict was, in effect, an application to the court to be relieved from offering any evidence upon the part of defendant, and a request that the case be not submitted to the jury upon the evidence of plaintiff, but that, as a matter of law, it be decided in defendant's favor; and, like an objection to the introduction of evidence upon the trial, a valid reason therefor, in order to be available, should be specifically pointed out. It would seem that it is not error to overrule a motion for the direction of a verdict that specifies no ground therefor; and when the motion states an unavailable ground, and attributes to the evidence a condition that suggests a conflict therein, and consequently a case for the consideration of the jury, such a motion is misleading, and the moving party should be confined on appeal to the grounds specified therein,...
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