Spies v. Union Pac. R. Co.
| Decision Date | 11 March 1918 |
| Docket Number | 4984. |
| Citation | 250 F. 434 |
| Parties | SPIES v. UNION PAC. R. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
W. D Oldham, of Kearney, Neb. (T. J. Doyle, of Lincoln, Neb., on the brief), for plaintiff in error.
A. G Ellick, of Omaha, Neb. (Edson Rich, of Omaha, Neb., on the brief), for defendant in error.
Before SANBORN, Circuit Judge, and TRIEBER and YOUMANS, District judges.
Mr Spies, the plaintiff below, the driver of an automobile brought this action for damages which he alleged he sustained by reason of a collision of the automobile at a street crossing with a motor passenger car which the railroad company was running across the street on one of its tracks. He averred that the collision and his damages were caused by the negligence of the company; the latter denied this allegation, and insisted that the negligence of the plaintiff was the cause of the collision and injury. The case came on for trial before a jury, and Mr. Oldham, one of the counsel for the plaintiff, made his opening statement of the facts of the case to them. At the close of that statement the court first said to him that his impression, from the statement he had made, was that he could not maintain the action, that the duty of the court was to order the case dismissed, but that, if he was wrong, he would like to be shown. Thereupon Mr. Doyle, another of the counsel for the plaintiff, and Mr. Oldham, again stated the facts and argued their sufficiency to constitute a cause of action. But the court again expressed the opinion that the facts were insufficient, whereupon Mr. Oldham replied that, in view of the statement of the court, he would dismiss the cause without prejudice. The court, however, denied the plaintiff permission to dismiss his case in that way, and, after hearing further discussion of the sufficiency of the facts stated, directed the jury, over the objection and exception of the plaintiff, to return a verdict for the defendant. The judgment challenged by this writ of error is based upon the rulings which have been recited.
The first question presented by this case is: Was the refusal of the court to permit the plaintiff to dismiss his case without prejudice to a subsequent action for the same cause erroneous? The statute which conditions the answer to this question is section 7654, page 2095, Revised Statutes of Nebraska 1913, and the part of it relevant to the issue here presented reads in this way:
If after considering the statement to the jury by counsel for the plaintiff of the latter's cause of action, and after giving counsel an opportunity to explain or modify it, the court was of the opinion...
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...v. Mutual Life Insurance Co. of New York, 8 Cir., 146 F.2d 321; International Shoe Co. v. Cool, 8 Cir., 154 F.2d 778; Spies v. Union Pacific R. Co., 8 Cir., 250 F. 434, 435. ...
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