Mcdonald v. Senn.
Decision Date | 22 November 1946 |
Docket Number | No. 4967.,4967. |
Citation | 50 N.M. 222,174 P.2d 564 |
Parties | McDONALDv.SENN. |
Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Chaves County; James B. McGhee, Judge.
Action by Rice McDonald against Mrs. J. E. Senn for injuries caused by defendant's negligent operation of her automobile. Judgment for plaintiff, and defendant appeals.
Affirmed.
Error, if any, in overruling defendant's motion for instructed verdict at close of plaintiff's case was waived by defendant's failure to renew motion at close of whole case.
E. E. Young, of Roswell, for appellant.
Frazier & Quantius, of Roswell, for appellee.
This action was brought by plaintiff (appellee) to recover damages for injuries to him, alleged to have been inflicted by defendant in the negligent operation of her automobile. The case was tried to a jury which returned a verdict for $3521.11. The defendant has appealed from a judgment entered in that amount. The only error assigned is as follows: ‘The court erred in denying defendant's motion for an instructed verdict at the close of plaintiff's case.’ After the plaintiff closed his case, the defendant introduced evidence in her behalf.
It has been held by this court in a number of cases that where a motion is made for an instructed verdict at the close of the plaintiff's case (as in this case), and defendant fails to renew the motion at the close of the whole case, any error made by the court in overruling such motion is waived. State v. Phipps, 47 N.M. 316, 142 P.2d 550, 551, citing a number of cases decided by this court so holding. The defendant has invoked this rule, and asserts that as the error assigned was waived, there is nothing before this court for consideration. We stated in the Phipps case:
The testimony in the Phipps case was reviewed by this court because the State did not invoke the rule, and both parties sought a consideration of the facts. But here the appellee has invoked the rule. We agree with appellee that if the trial court erred in overruling defendant's motion for an instructed...
To continue reading
Request your trial-
McDONALD v. SENN
...defendant Mrs. Senn for upwards of $3500, from which judgment she appealed to this court, resulting in its affirmance. See McDonald v. Senn, 50 N.M. 222, 174 P.2d 564. A transcript of the judgment was filed, as provided by Sec. 19-906 N.M. Sts. 1941, which is as follows: 'Any money judgment......