McKenna v. Scott
| Decision Date | 09 March 1953 |
| Docket Number | No. 4537.,4537. |
| Parties | McKENNA et al. v. SCOTT et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edgar Fenton, Oklahoma City, Okl. (Elliott C. Fenton, Oklahoma City, Okl., was with him on the brief), for appellant.
Lon Kile, Hugo, Okl., for appellees.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
Verna Lee Scott, for herself and as mother and next friend of her two minor children, instituted this action against Ray W. Steele, Southwestern Bell Telephone Company, and Raymond F. McKenna and James C. Walker, co-partners doing business under the name J. & M. Tree Surgeon Company, to recover damages for the death of Herman B. Scott, husband of Verna Lee Scott and father of the two minor children, which occurred as the result of a traffic accident on an arterial highway in Oklahoma. The cause was tried to a jury; a verdict was returned for plaintiff; judgment was entered on the verdict; and defendants McKenna and Walker alone appealed. For convenience, reference will be made to the appealing defendants as Tree Surgeon Company.
The action of the court in refusing to direct a verdict in favor of the defendant Tree Surgeon Company is challenged. It is argued that as to such defendant, the evidence was not sufficient to warrant the submission of the case to the jury. A mere scintilla of evidence is not sufficient to warrant the submission of a case to the jury. The well established rule is that the court should direct a verdict where the evidence is without dispute, or is conflicting but of such conclusive character that if a verdict were returned for one party, whether plaintiff or defendant, the exercise of sound judicial discretion would require that it be set aside. In other words, where the evidence, with all the inferences which may justifiably be drawn from it, does not constitute a sufficient basis for a verdict for plaintiff or defendant, as the case may be, and therefore if a verdict were returned in favor of such party it would have to be set aside, the court should direct a verdict for the opposite party. Slocum v. New York Life Insurance Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Central Surety & Insurance Corp. v. Murphy, 10 Cir., 103 F.2d 117; Farr Co. v. Union Pacific Railroad Co., 10 Cir., 106 F.2d 437; Oklahoma Natural Gas Co. v. McKee, 10 Cir., 121 F.2d 583; Coppinger v. Republic Natural Gas Co., 10 Cir., 171 F.2d 4.
The evidence presented conflicts. But it is the function of the jury, under proper instructions of the court, to judge the credibility of witnesses, to appraise their testimony, to weigh contradictory testimony and conflicting circumstances, and to draw the ultimate conclusions as to the facts, whether they relate to negligence or some other issue. Frates v. Thomas, 10 Cir., 57 F.2d 535; Chicago & Northwestern Railway Co. v. Golay, 10 Cir., 155 F.2d 842.
There was direct and circumstantial evidence which tended to establish these facts. The highway on which the accident occurred runs north and south, and traffic upon...
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...See also Continental Southern Lines v. Klaas, 217 Miss. 795, 63 So.2d 211, 65 So.2d 575, 833, 67 So.2d 256. The case of McKenna v. Scott, 10 Cir., 202 F.2d 23, an Oklahoma case, held that the negligent parking by Tree Surgeon Company of its truck about 2 feet on the blacktop surface of the ......
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