63 A. 239 | R.I. | 1906
It is a sufficient objection to the plaintiff's motion for a re-argument of this case (heretofore reported in
So broad is this grant of power, indeed, that the court continues (p. 360): "This last clause, it will be observed, ismandatory upon the assembly to exercise the powers they have heretofore exercised, unless prohibited." Even if this provision were not ample to authorize the General Assembly to confer upon the courts the judicial powers theretofore exercised by itself, the power of the General Assembly to create a court which might reverse a judgment was undoubtedly exercised by the General Assembly before the constitution was adopted, as shown in the opinion heretofore rendered, pp. 347-8 ante. Indeed, section 3 of article XIV of the constitution expressly provides that "The supreme court, established by the constitution, shall have the same jurisdiction as the supreme judicial court at present established . . . until otherwise prescribed by the general assembly."
Counsel for the plaintiff cites Mount Adams Railway Co. v.Lowery, 74 Fed. Rep. 463 (1896), as establishing a rule in the federal courts in conflict with the views advanced in the previous opinion. But in Boudrot v. Cochrane Chemical Co., *434 110 Fed. Rep. 919 (1901), the court repudiates the doctrine advanced in Mount Adams Railway Co. v. Lowery, supra, saying that the court in deciding Felton v. Spiro, 78 Fed. Rep. 576 (1897), upon the authority of the Lowery case had "overlooked the expressions of the Supreme Court to such an extent that we could not properly follow it."
In Hodges v. Kimball, 44 C.C.A. 193, 197-198 (decided in 1900), the United States Circuit Court of Appeals adopts the rule laid down in Treat Mfg. Co. v. Standard Steel Iron Co.,
heretofore cited, (
In Sullivan v. Chrysolite Silver Mining Co., 21 Fed. Rep. 892, Judge Brewer says: "I think the rule controlling Federal courts, one that is also recognized in some of the state courts, is that when, upon the whole testimony, the court would not feel justified in sustaining a verdict for the plaintiff, it should direct a verdict for the defendant; and that, although there may be what is sometimes called a scintilla of testimony or something which would raise a possibility or a suspicion that the plaintiff was entitled to recover. . . . And in this case, while there was some testimony upon which a jury might find that the defendant was guilty of negligence, although it was not absolutely demonstrative of negligence on its part, yet it seems to me, taking all the testimony together, the court could not do otherwise than affirm that the decedent was *435 himself negligent and that his negligence contributed to the result."
And see the recent case of Riley v. Louisville NashvilleR.R. Co., 66 C.C.A. 598 (1904).
In McPeck v. Central Vt. R. Co., 25 C.C.A. 111 (1897), the court says: "As was said by us in Deloriea v. Whitney, 11 C.C.A. 355, 361, `When a verdict in one direction ought to be set aside as against the weight of evidence, then, under the rule as now understood, the court ought to direct a verdict in the other direction.' The time has gone by when the federal courts sit at their own loss of time and at the expense of the parties, to take verdicts which they can foresee ought not to have been taken."
See also Patton v. Texas Pacific Railway Co.,
Petition for a re-argument denied.