Herb v. PitcairnHerb v. Pitcairn
delivered the opinion of the court:
Appellee brought this suit in the city court of Granite City against appellants to recover damages for рersonal injuries received while employed by appellants as a switch-man. The accident occurred in the switching yards of the Staley Manufacturing Company at Decatur, Illinois. The complaint on which the case was tried alleged that appellee was employed by appellants as a switchman; that appellants, as receivers of the railway company, were operating as a common carrier; that at the time of the injury both appellee and appellants were engaged in interstаte commerce and were subject to the provisions of the Federal Employer’s Liability act. (
Since this case wаs decided by the Appellate Court, this court, in Goodrich v. Sprague,
Appellants, as defendants in the trial court, had the right to file a motion for a directed verdict in their favor. This they did at the close of the plaintiff’s evidence and again at the close of аll the evidence in the case. Under the above section of the Civil Practice act the court had the right to reserve a ruling on that motion and submit the case to the jury. A verdict having been returned in favor of the plaintiff, the court was then required to pass on the motion for a directed verdict. If the court then decidеd, as a matter of law, that appellants were entitled to a directed verdict, it was the duty of the court to enter judgment non obstante veredicto. The practice followed by the trial court was strictly aсcording to law.
Had the trial court overruled the motion for a directed verdict, appellants had thе right, under section 68 (1) of the Civil Practice act, (Ill. Rev. Stat. 1939, chap, 110, par. 192 (1),) to file a motion for a new trial and have the court pass on all questions which could properly be raised by such motion. By filing their motion for а directed verdict they did not waive their right to file a motion for a new trial, in the event the motion for a directed verdict was denied. Cockrum v. Keller,
When the trial court sustained appellants’ motion for a directed verdict and entered judgment in thеir favor non obstante veredicto in accordance with the above provisions of the Civil Practice act, they had no occasion to make a motion for a new trial for the reason that judgment had been entered in their favor. The reversal of that judgment by the Appellate Court did not deprive apрellants of the right to the judgment of the trial court upon all questions which could be properly raised by a motion for a new trial. Cockrum v. Keller, supra.
In the late case of Montgomery Ward & Co. v. Duncan (No. 30, October Term, 1940, 61 Sup. Ct. 189) the Supreme Court of the United Stаtes, in announcing the above rule, stated that it was the uniform practice in the State courts. In support оf that statement the court cites cases from eleven States, including Chicago and Northwestern Railway Co. v. Dimick, supra.
The Appellate Court having reversed the judgment of the trial court, and being without power to еnter judgment on the verdict, should have remanded the cause to the trial court with directions to overrule thе motion for a directed verdict and to entertain a motion for a new trial, if one should be made, and, if such motion should be overruled, to enter judgment on the verdict.
For the errors indicated, the judgment of the Appellate Court is reversed and the cause remanded to that court with directions to remand the cause to the city court of Granite City with directions for further proceedings in that court in accordance with the views expressed in this opinion.
Reversed and remanded, with directions.