Missouri Pac. Ry. Co. v. Oleson

• Decision Date: 23 March 1914
• Docket Number: 4010.
• Citation: 213 F. 329
• Parties: MISSOURI PAC. RY. CO. v. OLESON.
• Court: U.S. Court of Appeals — Eighth Circuit

213 F. 329

MISSOURI PAC. RY. CO. v. OLESON.

No. 4010.

United States Court of Appeals, Eighth Circuit.

March 23, 1914

Syllabus by the Court.

The question presented in a national appellate court on a challenge of a refusal to direct a verdict is not whether or not there is any evidence to sustain the verdict rendered but it is (1) whether or not there was substantial evidence to sustain it, and (2) whether or not the evidence in support of the verdict requested was so conclusive that, in the exercise of a sound judicial discretion, the court should not sustain the verdict rendered. It is the duty of the trial court to direct a verdict at the close of the trial when the evidence is undisputed and when, upon a question of fact it is so clearly preponderant, or of such a conclusive character, that the court would be bound in the exercise of a sound judicial discretion to set aside a verdict in opposition to it.

The reopening of a case after the trial is closed to permit further evidence is a pernicious practice, but it is within the sound judicial discretion of the trial court in exceptional cases and is fatal only in the case of an abuse of that discretion.

Edgar M. Morsman, Jr., of Omaha, Neb., for plaintiff in error.

Brown Baxter & Van Dusen and M. L. Donovan, all of Omaha, Neb., for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and POPE, District Judge.

SANBORN Circuit Judge.

The defendant below, the Missouri Pacific Railway Company specifies two errors in this case, that the court denied its motion at the close of the trial to direct a verdict in its favor, and that after the evidence was closed, and after the defendant had made its motion for a directed verdict the court permitted counsel to recall the plaintiff and to introduce his testimony relative to the location of the leaning post over which he had testified that he fell.

In his complaint the plaintiff alleged that he stumbled, fell, and broke his leg over a leaning post placed by the railway company so near and permitted by it to lean over the sidewalk on the public street so long that it was thereby guilty of negligence that caused his injury. The defendant denied the allegations of the complaint and averred that, if the plaintiff was injured, his own negligence directly contributed to cause that injury.

The question presented in a national appellate court on a challenge of a refusal to direct a verdict is not whether or not there is any evidence to sustain the verdict rendered. It is (1) whether or not there was substantial evidence to sustain that verdict, and (2) whether or not the evidence in support of the verdict requested was so conclusive that in the exercise of a sound judicial discretion the court should not sustain a contrary verdict. It is the duty of the trial court to direct a verdict at the close of a trial when the evidence is undisputed and when, upon a question of fact, it is so clearly preponderant or of such a conclusive character that the court would be bound in the exercise of a sound judicial discretion to set aside the verdict in opposition to it. Canadian Northern Ry. Co. v. Senske, 201 F. 637 644, 120 C.C.A. 65, 72; Southern Pacific Co. v. Pool, 160 U.S. 438, 440, 16 Sup.Ct. 338, 40 L.Ed. 485; Union Pacific R.R. Co. v. McDonald, 152 U.S. 262, 283, 14 Sup.Ct. 619, 38 L.Ed. 434; Delaware, Lackawanna & Western R.R. Co. v. Converse, 139 U.S. 469, 11 Sup.Ct. 569, 35 L.Ed. 213; Patillo v. Allen-West Commission Co., 131 F. 680, 686, 65 C.C.A. 508, 514; Chicago Great Western Ry. Co. v. Roddy, 131 F. 712, 713, 65 C.C.A. 470, 471; Woodward...