Walton v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 10 July 1893
• Docket Number: 244.
• Citation: 56 F. 1006
• Parties: WALTON v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 1006

WALTON v. CHICAGO, ST. P., M. & O. RY. CO.

No. 244.

United States Court of Appeals, Eighth Circuit.

July 10, 1893

F. D Larrabee, for plaintiff in error.

Thomas Wilson, (S. L. Perrin, on the brief,) for defendant in error.

Before SANBORN, Circuit Judge, and SHIRAS and THAYER, District Judges.

THAYER District Judge.

This is a writ of error which is brought to reverse a judgment that was rendered under the following circumstances:

The plaintiff in error sued the defendant in error for personal injuries sustained while in its employ as a brakeman and switchman. There was a trial in the circuit court for the district of Minnesota, and at the conclusion of all of the testimony the defendant moved the court to instruct the jury to return a verdict in its favor. This request was denied and a verdict was thereafter returned in favor of the plaintiff in error. In due time a motion was filed by the defendant company to set aside the verdict, to vacate the judgment entered thereon, and to grant a new trial, which motion was duly argued and submitted, and afterwards sustained. It was thereupon ordered that the judgment and verdict theretofore rendered be vacated and set aside, that a judgment be entered in favor of the defendant, and that it go hence discharged without day, and recover its costs. After the entry of the last-mentioned order, no motion was made either to set the same aside, or to modify it, or to expunge any portion of the order.

In explanation of the action taken by the circuit court on the motion for a new trial, it is stated in the brief of counsel for the plaintiff in error, and was orally admitted in argument, that on the hearing of said motion 'the argument before the circuit court took the form of an argument upon the facts in the case,' the question discussed being 'whether or not there was sufficient evidence to sustain the verdict.' It is also conceded by counsel, both in his brief and orally, that, during the argument of such motion, plaintiff's attorney stated to the trial judge that the case 'might as well be determined finally and at once; that a new trial, at most would only result in cumulative testimony; and that, if the plaintiff had not introduced testimony sufficient to sustain a verdict, if there was missing * * * an integral factor necessary to produce a cause of action, he wanted to know it without the additional expense of another trial.'

In view of the admissions made by counsel for the plaintiff in error it appears, we think, that the error complained of was an invited error,--one which the trial judge committed at the request of the plaintiff in error. The trial court had the right to grant the motion for a new trial, and its action in that respect, being purely discretionary, cannot be reviewed by this court, as has many times been held. Henderson v. Moore, 5 Cranch, 11; Pomeroy's Lessee v. State Bank of Indiana, 1 Wall. 592, 597; Railway Co. v. Heck, 102 U.S. 120. The further action...