Simmonds v. Capital Transit Co., 8783.

• Decision Date: 19 February 1945
• Docket Number: No. 8783.,8783.
• Citation: 147 F.2d 570,79 US App. DC 371
• Parties: SIMMONDS v. CAPITAL TRANSIT CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

79 US App. DC 371, 147 F.2d 570 (1945)

SIMMONDS v. CAPITAL TRANSIT CO.

No. 8783.

United States Court of Appeals District of Columbia.

Decided February 19, 1945.

Mr. Abraham Chaifetz, of Washington, D. C., with whom Mr. Dorsey K. Offutt, of Washington, D. C., was on the brief, for appellant.

Mr. H. W. Kelly, of Washington, D. C., with whom Mr. R. E. Lee Goff, of Washington, D. C., was on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and ARNOLD, Associate Justices.

MILLER, Associate Justice.

Appellant sued in the District Court to recover damages for injuries suffered when he was struck by one of appellee's streetcars. Appellee moved for a judgment under Rule 50(b) of the Federal Rules of Civil Procedure¹ and the trial judge granted the motion, notwithstanding the jury's verdict in favor of appellant.

The rule, applicable on this appeal, was stated in the Shewmaker case,² decided by this Court two months after judgment was entered by the trial court in the present case. It requires us, in deciding whether to uphold the verdict of the jury or the judgment of the Court, to balance the weight of the evidence against the judge's determination and in favor of the jury's determination; the question being, not whether there is sufficient evidence in the record to support the judge's findings and decision, but whether there is sufficient evidence, when construed most favorably for the party upon whom the onus of proof is imposed, from which a jury of reasonable men could properly have reached the verdict which was reached.

The rigor of the rule appears from the following language of a recent Supreme Court decision: "The motion for judgment cannot be granted unless, as matter of law, the opponent of the movant failed to make a case and, therefore, a verdict in movant's favor should have been directed. The motion for a new trial may invoke the discretion of the court in so far as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury."³ Italics supplied The Supreme Court went on to say: "Should the trial judge enter judgment n. o. v. and, in the alternative, grant a new trial on any of the grounds assigned therefor, his disposition of the motion for a new trial would not ordinarily be reviewable, and only his action in entering judgment would be ground of appeal. If the judgment were reversed, the case, on remand, would be governed by the trial judge's award of a new trial."⁴

An examination of the record shows, as the trial judge noted in his memorandum opinion, evidence given by appellant to the effect that he was walking toward the center of the street within a crosswalk, where he was struck by appellee's streetcar. He testified, also, that no street traffic lights were in operation at the intersection where and when the accident happened; that no police officer was on duty, there, at the time; that the crossing was clear of traffic when he stepped from the curb; that, after taking several steps, he looked again to his left — the direction of approaching traffic — and saw a streetcar coming toward him, of the "streamliner" type, but some distance away; that he believed he had sufficient time to get across Connecticut Avenue to the streetcar loading platform and continued walking at a normal rate of speed; that he did not look again to his left toward the approaching car; that just as he stepped over the first rail of the streetcar track, he suddenly saw a big light and some enormous object in front of him; and after that he remembered nothing. There is no dispute that appellant was struck by appellee...