Whitley v. Powell, 5503.

• Decision Date: 23 December 1946
• Docket Number: No. 5503.,5503.
• Citation: 159 F.2d 625
• Parties: WHITLEY v. POWELL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

159 F.2d 625 (1946)

WHITLEY v. POWELL et al.

No. 5503.

Circuit Court of Appeals, Fourth Circuit.

December 23, 1946.

Hill Yarborough, of Louisburg, N. C., and John H. Zollicoffer, of Henderson, N. C., for appellant.

Murray Allen, of Raleigh, N. C., for appellees.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal by plaintiff in a crossing accident case from a judgment under Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, dismissing the action at the conclusion of her testimony on the ground that, on the facts and the law, she had shown no right to relief. The case was heard by the judge without a jury; and an initial question presented for our consideration is the rule of decision applicable on review. Defendant contends that the action of the lower court must be reviewed as though findings of fact had been made under Rule 52(a) and may not be reversed unless clearly erroneous. We think it clear, however, that rule 52(a) applies where the judge finds the facts upon the submission of the case to him for judgment, not where he enters an involuntary dismissal under rule 41(b) or directs a verdict under rule 50, and that the rule applicable upon appeal in these latter cases is whether or not the evidence shows a right to relief when considered in the light most favorable to the party against whom the motion for dismissal or directed verdict has been allowed.

The rule stated applies where the case in which dismissal is granted has been heard by the judge without a jury as well as where the trial has been by jury; for the motion challenges, not the weight of the evidence, but its sufficiency, assuming it to be true with all proper inferences drawn in favor of the party relying upon it. For this reason, no finding of facts is made by the judge in granting the motion, but simply a ruling that plaintiff has shown no right to relief. If there is reversal as to this, the appellate court does not find the facts itself, as upon the reversal of findings, but remands the case for further trial. See Federal Deposit Ins. Corporation v. Mason, 3 Cir., 115 F.2d 548, 551; Schad v. Twentieth Century Fox Film Corporation, 3 Cir., 136 F.2d 991, 993; Moore's Fed.Practice, vol. 3, p. 3044.

We are advertent to the fact that, in some Circuits, it has been held that, where a case is heard before a judge without a jury, he may on a motion to dismiss evaluate the testimony and grant the motion on the merits;^* but in such case specific findings must be made, and it is these findings which are reviewed under the rule which defendant seeks to invoke. Whether such practice should be given the sanction proposed by the suggested amendment to rule 41(b) (See Federal Rules Decisions, Vol. 5, p. 465) it is not necessary here to inquire. It is sufficient to say that no attempt to adopt the practice was made in this case; and, in the absence of a change in the rule, we do not think it appropriate for the judge to find the facts on a motion to dismiss under rule 41(b). This should be done only after both sides have rested and submitted the case for judgment on the merits. Defendant can do this at the conclusion of plaintiff's case, if he so desires; but he should not be held to have done so merely by making a motion to dismiss, which he does without waiving the right to introduce further evidence.

We decide the question of practice because it is raised in the briefs of counsel and is one of considerable importance. In the case at bar, however, we are of opinion that, under the rule that the evidence must be considered in the light most favorable to plaintiff, the judgment dismissing the case was correct and should be affirmed, as the evidence, when so considered, was not sufficient to show a right to relief on the part of plaintiff.

The evidence shows that the crossing accident upon which plaintiff's claim is based occurred around one o'clock in the morning of December 7, 1941, in the town of Franklinton, N. C., where Mason Street crosses the tracks of the Seaboard Air Line Railway. Plaintiff was riding in her own car, which was being driven for her by a friend, one Bud Noble. The tracks of the railway run north and south at the crossing, Mason street east and west; and the car was struck as it was proceeding eastward across the tracks by a passenger train approaching from the south. There were four tracks at the crossing and that on which the train was traveling was the main line track, or the third track to be reached by one traveling eastward on Mason Street. The first track is a house or spur track, and between it and the main line track is what is known as a pass track. From the west rail of the main line track to the pavement west of the crossing is a distance of 37 feet, to the west rail of the spur track 32 feet, and to the east rail of the pass track 18 feet. A person traveling in an easterly direction can see 150 or 200 yards to the south when he reaches the first rail of the spur track, 700 feet to the south when he reaches the second track.

The passenger train which was in collision was the Silver Meteor, one of the streamliners of the Seaboard, traveling, in violation of a municipal ordinance, at a speed of around 60 miles an hour. There was evidence that it did not blow the whistle or ring the bell for the crossing; but its headlight was burning brightly and it was making so much noise that it was heard by a witness in an office 150 yards distant with the doors and windows closed. Plaintiff was sitting on the right side of the seat of her car beside the driver; and she testifies that the car stopped at the first track on reaching the crossing and that she looked and saw the light of the approaching train. The driver then started ahead and was on the main line track when the car stalled. The driver...