Roedegir v. Phillips
| Decision Date | 06 October 1936 |
| Docket Number | No. 4040.,4040. |
| Citation | 85 F.2d 995 |
| Parties | ROEDEGIR et al. v. PHILLIPS et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
A. M. Aiken, of Danville, Va., and Gilbert E. Powell, of Greensboro, N. C. (Jesse W. Benton, of Danville, Va., on the brief), for appellants.
Clarence Ross and J. Elmer Long, both of Graham, N. C., for appellees.
Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge.
This is an appeal from judgments rendered in three personal injury actions which were consolidated for trial in the court below. All three of the actions were based upon injuries sustained when an automobile in which plaintiffs were riding was in collision with an automobile of the defendants. Two trials were had in the court below. On the first of these, there was a verdict for the defendants, which the trial judge set aside, in his discretion, as being contrary to the weight of the evidence. On the second trial verdicts were rendered for the plaintiffs; and from judgments thereon the defendants have appealed. The appeal presents only two questions for our consideration: (1) Whether, at the first trial, there was error in setting aside the verdict for defendants and granting a new trial; and (2) whether, at the second trial, there was error in denying defendants' motion for a directed verdict.
As to the first of these questions, the rule is well settled that the setting aside of a verdict and the granting of a new trial is a matter resting in the sound discretion of the trial judge, and that the exercise of such discretion will not be disturbed on appeal in the absence of a clear showing of abuse. Newcomb v. Wood, 97 U.S. 581, 583, 24 L.Ed. 1085; Norfolk Southern Bus Corporation v. Lask (C.C.A.4th) 43 F.(2d) 45; Paine v. St. Paul Union Stockyards Co. (C.C.A.8th) 28 F.(2d) 463, 467; Mound Valley Vitrified Brick Co. v. Mound Valley Natural Gas & Oil Co. (C.C.A.8th) 205 F. 147; James v. Evans (C.C.A.3d) 149 F. 136, 141; Clement v. Wilson (C.C.A.2d) 135 F. 749. A careful study of the record convinces us that there has been no such abuse of discretion in this case but that same has been wisely exercised. The trial judge was not without discretion to set aside the verdict and order a new trial merely because the evidence on the first trial was conflicting. He had seen the witnesses and had had opportunity to judge of their credibility; and, if he was convinced that the verdict was against the weight of the evidence or that, for any other reason, it would result in a miscarriage of justice, it was his duty to set it aside and order a new trial.
The motion for directed verdict on the second trial was properly denied. Without reciting the evidence, it is sufficient to say that, when viewed, as it must be,...
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...has been clearly stated by Chief Judge Parker in Garrison v. United States, 4 Cir., 62 F.2d 41, 42; and repeated by him in Roedegir v. Phillips, 4 Cir., 85 F.2d 995, and Ætna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350, as "Where there is substantial evidence in support of plainti......
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