*1 EBY NEELY v. MARTIN K. CONSTRUCTION CO., INC. Argued January 16-17,
No. 12. 1967. Decided March *2 Kenneth N. argued the for petitioner. Kripke cause Charles A. Friedman. him the briefs With John Mott for C. argued respondent. the cause With Anthony Zarlengo Joseph F. him on S. the brief were McCarthy.
Mr. Justice White delivered the opinion the Court. brought diversity Petitioner action the United States District District of alleg- Colorado
CO r-H cs n mainte- negligent construction, ing respondent’s in the platform a scaffold used nance,.and supervision Colorado, Elizabeth, a missile silo near construction of plunge her father’s fatal caused proximately had Night employment of his platform during the course engineering firm Sverdrup Parcel, Captain Silo system of a missile engaged the construction launcher petitioner’s in the silo. At the close of the evidence and again close of all the evidence, respondent at the moved for a directed verdict. denied both'mo- tions and submitted case to which returned jury, a verdict for $25,000.
Respondent then judgment notwithstanding moved for jury’s or, alternative, for a new trial, in accordance with Rule 50 (b), Federal of Civil Rules *3 Procedure.1 The trial court denied motions and entered judgment for on the jury’s verdict. Respondent appealed, claiming that its motion for judg- ment n. o. v. granted. should have Petitioner, been urged only that the jury’s verdict should be agpellee, upheld.
The Court of Appeals held that the evidence at trial was insufficient to establish either negligence by respond- 1 “(b) Judgment Motion Notwithstanding the Verdict. When- for _ ever a motion for a directed verdict made at the close all evidence is or any denied for reason granted, is not the court is deemed to have submitted the action subject to a later legal determination questions of the raised the motion. Not. days later entry than 10 aftér of judgment, party who has for may moved a directed verdict move to have the verdict and any judgment judgment entered thereon set aside and to have entered accordance with his motion for a directed verdict . . . . A may motion for joined a new trial be motion, with this or a new may prayed be for in the alternative. If a verdict was returned may the court judgment allow the may reopen stand or judgment and either order a new trial or entry direct judg requested ment as if the verdict had been directed. . . .” reversed the proximate judgment or cause and ent the District Court “with instructions dismiss the filing petition rehearing action.” Without sought then a writ of cer- Appeals, petitioner Court whether tiorari, presenting Appeals could, consistent with the 1963 amendments Rule 50 of the Federal Rules2 with Seventh guarantee right Amendment’s of a to jury trial, direct the trial court to dismiss the allowing action. Our order certiorari parties’ directed the attention to whether Rule
2Principally, the amendments (c) added new subdivisions to Rule 50: “(c) Ridings Same: Conditional on Grant Motion. “(1) If the judgment motion for notwithstanding verdict,
provided subdivision, for in (b) rule, granted, of this is the court shall also trial, rule on the motion any, by determining a new if granted whether it should if the is thereafter vacated or reversed, specify and shall granting denying the motion for the new If trial. the motion for a new trial is thus conditionally granted, the order thereon finality does not affect the judgment. In case the motion for a new trial has been con- ditionally granted and the is appeal, reversed on the new proceed trial shall unless the court has otherwise ordered. In case the motion for a new trial conditionally denied, has been appellee may on denial; assert error in'that if appeal appeal, subsequent reversed proceedings shall be in accordance with the order of the court. “(2) party whose verdict has been set aside on motion for judgment notwithstanding the verdict serve a motion for a pursuant not later days than 10 after *4 judgment notwithstanding the verdict. “(d) Denial Same: Motion. If judgment the motion for not- withstanding .denied, the party verdict is the prevailed who on that may, appellee, motion assert entitling him to a the event the court concludes that the trial court erred denying the notwithstanding the verdict. If the judgment, reverses nothing in this rule precludes determining it from appellee that the is entitled a new trial, directing from the trial court to determine whether a new granted.” 'trial shall
321 Pulp Virginia West in Cone v. our and decisions (d) 50 Co. v. Liquor Globe Co., 212; S. 330 U. Paper & San Dichmann, Wright Weade v. Roman, 571; U. S. 332 by a disposition Inc., 337 801, permit & Pugh, S. U. gives a which (c)(2), 50 Rule despite 10 by a trial court set aside verdict whose party court’s discretion invoke- the in which to days trial.3 We affirm. a new order for a directed moves party 50 if a (b),
Under
if the trial
of the evidence and
the close
verdict at
judge is “deemed”
jury,
case
elects to send
If
‘jury
motion.
to have reserved decision
days
10
party may
within
contrary verdict,
returns
with his
entered
accordance
to have
move
is consistent
procedure
This
motion for directed verdict.
adop
to the
prior
with
of this Court rendered
decisions
Baltimore
Compare
tion of
Federal Rules
1938.
Line,
Redman,
Carolina
Inc. v.
654,
295 U. S.
with
Co.,
Slocum New York
Ins.
228
v.
U. S.
Life
Kennedy,
Aetna Ins. Co. it is
U. S.
And
(b)
that Rule 50
settled
does not violate the Seventh
Montgomery
guarantee
Amendment’s
of a. jury trial.
Duncan,
Ward & Co.
after the denial of a (b) defendant’s Rule 5j) presented Petitioner following question in her petition >(cid:127) a writ of certiorari: (a)
“Do Rules and 38 Federal Rules Civil Procedure and the Seventh Amendment the Constitution of the United preclude Appeals States the Court of instructing the trial court to dismiss an action wherein the trial court denied the defendant’s judgment notwithstanding motions new trial and for plaintiff?” and entered for the question presented by view and our order granting certiorari, we do not consider whether the Court of correctly petitioner’s negligence held that proximate evidence of go jury. cause was insufficient to *5 322 notwithstanding verdict, may
motion entry dismissal or direct of order itself right far as Seventh Amendment’s As defendant. greater is there is no restriction concerned, jury trial when an court province on the n. o. v. than does; when a trial judgmént enters appel- there no constitutional bar consequently, is v. granting judgment n. o. See Baltimore & late court supra. Line, Redman, Inc. v. Carolina Likewise, appellate jurisdiction statutory grant the courts certainly enough power to include the broad n. o. entry appeal. Section direct provides that, 28 2106 of Title any or Supreme appel- other court “The vacate, may affirm, modify, set aside jurisdiction late any judgment, decree, or order of a or reverse brought lawfully review, may before re- the cause direct the appro- mand such priate decree, or judgment, order, require such proceedings further to be just had as under the circumstances.” Bryan States, United
See
Rule cases such as one judgment trial where the court has a motion for denied (d) expressly preserves party n. o. v. Rule 50 prevailed right urge who in the district court the appeals grant jury’s of court a new trial should appeal. (d) empha- verdict be set aside on Rule 50 also “nothing precludes” sizes that in this' rule the court of determining appellee “from that the is entitled directing to a new trial, or from the trial court to de- granted.” termine whether a Quite .shall properly, recognizes this Rule that the court may prefer judge pass upon appel- that the trial first
4
Advisory
explains:
Committee
“If
the motion for new
conditionally granted
trial has been
party against
. . .
whom
[t]he
judgment
n. o. v. was entered
may,
below
as appellant, be
seeking
sides
judgment,
overthrow that
also attack the condi
grant
-tional
of the new trial. And the
court, if it reverses
judgment
may
v.,
appropriate
n. o.
in an
case also reverse the
grant
conditional
of the new trial
and direct that
be entered
on the
31
Schenley
Inc.,
verdict.”
F. R.
Lind
D. 645. See
v.
Indus.
(C.
278
2d
1960),
denied,
F.
79
A. 3d Cir.
cert.
364
835;
U. S.
Moist
Refrigerator
Cold
Co.,
Co.
Lou Johnson
(C.
v.
324 suggestion. consideration Nevertheless, lee’s lodged is first instance” “in the the new (d) permissive appeals. is Rule 50 And court with the appeals: inas the court its direction nature indicating nothing (c)(1), in Rule 50 there Rule judg- not direct of appeals that the appropriate cases. v. in n. o. ment inapplicable supra, (c)(2), face is on its 2,n. regulates the presented That Rule here. to the situation if opportunity for a new trial to move winner’s (b) granted a Rule has trial court Court denied case, the trial In this n. v.o. respondent appealed. Jurisdiction o. Appeals, passed over case then petitioner’s right new trial in the trial to seek a *7 dependent jury aside became her verdict was set after Appeals disposition upon Court of under the the (d). Rule 50 Advisory explained, these
As the
Committee
of
to “alter the effects
a
amendments were not intended
jury
scope
appellate review,”
verdict
the
of
as articu
or.
prior
decisions of
Court.
R. D.
lated
F.
Virginia Pulp
Paper
supra,
Co.,
In Cone West
v.
&
the
for
verdict,
defendant moved
a directed
trial
but the
jury.
jury
the
sent
case
the
After a
for
verdict
plaintiff,
the
court denied
motion
defendant’s
appeal,
Appeals
for a new
On
trial.
of
Court
re
judgment
versed and
of
ordered
n.
This
o. v.
Appeals
ground
Court
the Court of
reversed
on the
that
judgment
had not
defendant
moved for
n.
v. in the
o.
only
consequently
court,
a
but
new trial, and
Appeals
precluded
directing any
was
disposition
Liquor
other than a new trial. See also Globe
supra.
Roman,
Co.
San
v.
York,
Johnson v. New
Co.,
N. H. & H. R.
procedural -or requirements (b), Rule 50 where reveals a new trial issue has not re- record which been protect solved. Part the Court’s concern has been to the rights party whose set jury verdict has been appeal aside on and who have valid for a trial, some or passed upon all which should by the district rather than court, appeals, the court of because of the trial judge’s knowledge wit- first-hand nesses, testimony, and issues—because his “feel” overall very case. These are valid concerns to which the court of be constantly should alert. Where o. v. moves for defendant the trial court, plain- *8 present, tiff connection with that motion or with a separate motion after n. o. v. is granted, his for a new trial or voluntary nonsuit. Clearly, where he his retains verdict the trial court and the defendant plaintiff appeals, should have the opportunity which 50 affords him press those same different grounds in the court of appeals. And .obviously judgment defendant-appellant should not be ordered where the plaintiff-appellee urges grounds for a nonsuit or new trial
326 addressed to more appropriately should which court. justify an ironclad considerations do not
But these never order dis appeals rule should the court of plaintiff’s when the missal or for defendant a would appeal. been Such rule has set aside litigation and purpose speed Rule serve any of Nor do our cases unnecessary avoid retrials. States, in Pence v. United Indeed, a rule. mandate such decision 332, 316 we S. affirmed Court U. grant failure to reversing the trial court’s Henagan, York, H. Co. v. in New N. & R. n. o. And v. H. entry judg itself 441, 364 S. this Court directed U. judg whose proper ment for a verdict loser request n. o. v. had wrongly by the District ment been denied Appeals.5 Court and view of these language statutory 50 cases, (d), grant of broad think more appellate jurisdiction, we discriminating preferable approach is to the inflexible rule which contends.
5 Since the decision six Virginia Pulp Paper Co., in Cone v. West (b) courts of the denial of a Rule SO motion have reversed v. in addition o. directed to the Tenth See, Capital case. Transit Co. v. g., Circuit’s decision e. App. 283; Stopper 57, 160 2d 82 U. S. D. C. F. v. Gamble, Manhat (C. Cir.), denied, 241 2d 465 3d cert. 355 Co., F. A. tan Ins. Life Corp. 815; S. 2d U. v. 354 F. States, Richmond Television United (C. Cir.); 410 4th 2d Shipping Co., A. v. 358 F. Mills Mitsubishi (C. Cir.); Lappin 609 5th v. Baltimore & 2d A. 337 F. Co., R. Ohio (C. Cir.); Pistolesi, 399 A. 7th v. Massachusetts Mut. Ins. Co. Life other, (C. Cir.). 160 circuits F. 2d 668 A. 9th had rendered prior similar decisions to Cone. See Ferro Concrete Constr. Co. v. (C. 1st Cir.), denied, 112 2d 488 A. cert. S. States, F. 311 U. United 697; (C. Brennan v. 115 F. 2d A. Co., 555 & Ohio R. Baltimore denied, 685; Cir.), 2d 312 S. cert. U. Connecticut Mut. Ins. Co. Life modifying (C. Cir.); 2d 2d 375 F. F. A. 6th Lanahan, Corp. Kearney 151 F. 2d Co., Loan Federal Sav. & Ins. Trust (C. Cir.). A. 8th *9 de- are, hand, on the one situations where the There setting jury’s aside the- verdict fendant’s or jurisdiction disposi- matter questions subject raise if which, favor, of law resolved defendant’s tive issues The necessarily litigation. terminate must employer’s against union, a appeals may hold suit example, the case is within the exclusive juris- Labor or in Board, diction of National Relations libel, absolutely suit, privileged the defendant was situations, t"o In such publish disputed statement. and others like can be reason whatsoever them, there no to prevent appeals ordering the court of dismissal or action for the defendant.
On the other where the hand, sets jury’s aside the verdict because the evidence was insuffi cient to send the the jury, case to it is not so clear that the litigation should Although many be terminated. the plaintiff-appellee’s possible grounds for a trial, such as inadequacy of will iiot verdict, survive decision that the case should gone not have jury in the first there place, important remain consid which him erations entitle a new trial. erroneous exclusion of evidence which have would strengthened an important his case is possibility. An other is that the trial court itself the insufficiency caused in plaintiff-appellee’s by erroneously case too placing on high proof a burden of him at trial. But like issues these are issues of law with which courts of appeals regularly characteristically must deal. The district court in all has already likelihood ruled these ques tions in the course of the trial any and, event, has no special advantage competence dealing with them. They precisely are the kind of issues de losing may bring below fendant the court of appeals with moving ever for a new trial in the district court. out Liquor Roman, Cf. Globe San Co. v. 332 U. S. is set aside plaintiff's if the
Likewise, v., plain n. o. *10 court on defendant's of directly court to the Very grounds bring these may tiff new trial in the district for a moving without appeals with normally rests issues action on these Final court.6 appeals. of the court by the trial
A is set aside plaintiff whose verdict n. o. v. may judgment motion for court defendant’s voluntary give nonsuit to grant ask the trial to Cone gap proof. fill a in his plaintiff another chance to Virginia Pulp Paper Co., West The 330 at 217. S., U. opportunity should have this same plaintiff-appellee appeal. Undoubtedly, when his is set aside on verdict of many question cases will call for an exercise this no sub- However, trial court’s discretion. there is the why appellee present stantial reason the the not should necessary if appeals, the court of which can matter to permit by case to initial consideration the remand the district court. challenge where cases the the these defendant- is,to sufficiency of the record
appellant evidence, very appeals likely court of will be a one. full appellee required designate will not be Thus, ahd print parts additional the record to his substantiate (or for a grounds trial), nonsuit new and it should an burden in the course of arguing be for his undue indicate in why his he to a brief entitled judgment his be set new trial aside. Moreover, should for convenience, can choose his own appellee when for a new may bring grounds make his case trial: he his Advisory 50(c)(2) explains: Note to Committee’s trial, makes no motion if the verdict-winner for a new “Even he is judgment appeal only upon his entitled n. o. v. not judgment urge should reversed and entered verdict, during errors were upon but committed entitle him a trial.” the. least F. R. D. which at judge’s when defend- attention trial to for new argue may he .motion, o. v. makes first ant may appeals, heor court of in his brief rehearing from the seek situations in suitable appeals has been reversed. his after express makes Rule 50 therefore, view, In our opportunity provision adequate —which present his plaintiff-appellee this rule—to without had is set event his verdict for a appeals. in his If so he does court of aside rehearing petition if the in a brief—or appellant— appeals directed has disposition final make the court except presented, informed dis those which its issues *11 appellee If for the tri&lcourt. be reserved cretion should petition presents in a in his brief or no new trial issues any rehearing, appeals may, event, for the court of question a new trial on its own motion refer order in its court, based on factors encountered the district Compare Dichmann, Weade own review case. v. . Pugh, Wright supra Inc., before won a in the us, In the case respondent’s Court which survived motion for District Appeals n. o. v. In the of issue was Court sufficiency of the evidence and that court set aside appellee, suggested Petitioner, for verdict. no a trial in the new event her was nor reversed, petition rehearing Appeals, for she did though even that court had directed a' dismissal of her suggested case. was that the Neither record was insuffi- any present any cient to new trial issues or other rea- required son a remand to the District Indeed, Court. Appeals, petitioner her brief in the Court of “This stated, fairly properly law' suit was tried was in- was, It structed.” course, incumbent on the Court Appeals light to consider the new trial in will not the case. But we experience
of its with own duty respect, in this ignored the court its assume that although opinion have better had its it would been expressly question. dealt with passage Court, a short at the end of her brief to a petitioner suggested ground that she for has valid opinion in the District exclusion of Court’s testimony by concerning respond her witnesses whether platform ent’s scaffold adequate job for the it was perform. intended to This not raised in matter was of Appeals petition Court or in the writ certiorari, though portions even relevant the tran made a script part appeal. were of the record Under no circumstances, deviating these we see cause considering normal of not policy our issues which have presented not been Court and which properly presented Supreme are not for review here. Borak, 40 (1)(d)(2). See J. I. Case Co. 426, 428-429; Taylor, 377 U. S. S.U. California 553, 556-557, n. 2. case in this pitched
Petitioner’s Court is on the total power lack of the Court of Appeals to direct respondent. We have rejected that argument and therefore affirm.
It is so ordered. Douglas and Mr. while Justice Fortas, Justice Mr. *12 agreeing with the Court’s construction of Rule 50, would reverse because in their view the evidence of negligence proximate and cause was go sufficient to the jury. .
Mr. Justice Black, dissenting.
I dissent from the Court’s decision in this case for three reasons: I First, think the evidence in this case clearly sufficient to go to the jury on the issues I think Second, cause. proximate negligence both a court and Rule decisions prior our under judg- to enter court’s refusal a trial reversing appeals, evi- insufficiency of the o. v. ground ment to order entirely powerless dence, winner of the verdict depriving thus case, dismiss trial to the a motion present any opportunity case. familiar with the thoroughly who is I find power, has that if a even Third, Appeals’ affirm the Court of manifestly it unfair a chance giving this judgment here without to the Court her a new present holds she today the Court for the first time Appeals as must.
I.
briefs on the
respondent,
Petitioner and
both
their
have
argument,
vigorously
merits and
their oral
extensively addressed themselves
whether the lower
in holding
peti
court was correct
tioner’s
of negligence
proximate
evidence
cause was
go
insufficient to
to the jury. The Court, however, con
veniently
facing
avoids
if
issue—which
resolved in
petitioner’s
favor,
completely
would
dispose of this
case
a footnote statement
this issue was not
1—
presented in the petition for certiorari nor encompassed
by our order granting certiorari. Besides the fact that
this seems to me to
overly
be an
meticulous reading of
petition
for certiorari and our order granting it,2
1Heretofore, when faced with this issue, the Court has met
head-on and thus
unnecessarily
avoided
discussing the effect of
See,
g., Conway
O’Brien,
e.
492; Berry
312 U. S.
States,
United
450; Halliday
312 U. S.
States,
v. United
332 with an to deal refusal Court’s for the reason
I see no even in this case undoubtedly present which issue for petition emphasized though specifically not not consider Court will usually this Although certiorari. certiorari, our petition presented not questions court, at long provided “the 40(l)(d)(2) has Rule and presented,” error not plain notice a option, its deciding of cases disposed frequently has the Court pre themselves failed parties which the issues crucial United g., Carpenters Brotherhood e. See, sent. States, United 370 S. States, 395; Silber v. U. 330 U. S. I Virginia, believe, S. 717; Boynton If, U. 454. wrong concluding was Appeals the Court of go its evidence was insufficient to the then jury,' jury’s reversal of the verdict was a violation of the Amendment, certainly Seventh and this is the kind plain constitutional error that this Court can and should correct.
That the evidence was ample more than both prove negligence proximate is, and cause I think, inescapably clear from cursory even a review of the undisputed facts in this record. Petitioner’s father was killed while work- court denied the defendant’s motions for notwithstanding the plaintiff?” and entered for the Certainly, if there were go sufficient evidence to jury, to the then (a) Rule 38 preclude the Seventh Amendment the Court of directing petitioner’s dismissal case after she had jury obtained a verdict. To make further clear that was challenging Appeals’ ruling sufficiency on the evidence, petition for certiorari “petitioner also states that does concede one moment trial court and the were wrong and that fight court was interpreting proximate evidence as to negligence.” cause and And our order granting certiorari, directing while counsel’s attention question Appeals’ power the Court of to dismiss the (c) case under (d), stated that ques- addition to all the “[i]n presented by petition.” tions 382 U. S. missile-launching silo of a construction on the ing *14 firm and his engineering Neely worked Colorado. suspended 130 blocks on certain concrete work was to job carpen- Respondent, bottom of the silo. from the feet maintenance, construction, for the responsible firm try constructed scaffolding silo, all supervision blocks in between two of the concrete platform a wooden Neely go from one block allow workers such as order to not cover the however, The did platform, to the other. the blocks nor was it level with entire distance between horizontally away it was two feet Instead, them. vertically either block arid was raised two feet above the railing blocks. was on one Also, constructed side platform between and one of the blocks. rail- No ing placed was on the other platform. side When Neely along with three fellow workers at the silo, arrived they were by respondent’s told foreman platform that the ready. was only way they get could from the plat- form to the blocks bywas jumping gap between the platform and blocks. However, railing because on one side of the platform, the workers could not jump directly across the gap two-foot to the block on that side, but had jump either to diagonally three feet to the block or to railing. climb over the One successfully worker then, leaped block, fastened his safety belt, and looked- back saw who Neely, was to follow, falling ¿head- through first the hole between the platform and the failing Neely, block. make the jump, fell to his death below. feet Petitioner’s case of the testimony consisted day carpenters one of the foreman, who .constructed the plat- form, and worker who was closest to Neely when he Quite fell. view of understandably, strong evi- petitioner did call to dence, testify the two other Neely’s workers who witnessed fall or the other carpen- on platform. ters who worked She did, however, revealing photographs platform, introduce several of the intervening blocks, gap immediately taken after the . respondent’s accident. On objection, photographs several other which showed nets excluded which, accident, placed platform, after the were under the safety investigators. testimony for the was There that neither the nor there railing platform broke and that was no on grease platform. petitioner’s But when counsel asked the day foreman whether he considered platform replied nega- safe and he adequate, tive, though respondent’s objection, testimony, ordered opinion then stricken as evidence on an ultimate issue. The trial allow same court refused to *15 question to time, be asked of the other At witnesses. one the carpenter testify railing did a on put only was of platform nearing one the side because lunch hour was platform and to completed the had before then. On evidence, this which trial the characterized presenting case,” a “close the Appeals held a verdict should been respondent. have directed for Although willing the court was to assume that there might negligence in platform be some the size of the or placing railing of the along the one and side, though it concede; willing platform was “that the might pos- sibly something [Neely’s] have do had with his fall,” 486, 344 2d the 482, court purported F. to find no evi- not even dence, circumstantial evidence, that the cón- of platform struction the proximate was the of cause I fall. think this for holding cries If reversal. con- platform a structing feet air, which height at safety belts, use a workmen with diagonal three-foot gap leap over which workers must with a railing which .and makes a direct jump impossible, does not negli- itself show gence proximate and cause, then it difficult to conceive any evidence that would. Besides the size of plat- and the presence the railing, the photographs f.orm record, in this reveal reproduced jury, shown kick- in its a defects possible other construction: vertical through gap railing into the extending beyond board floor of the on rough boards Neely jumped; which coming headfirst Neely fact was platform. might two feet below passed he the time block concluded jury to have made have it reasonable merely than impediments rather tripped that he these on I it a clear believe was opening. short, stepped deprive Amendment violation the Seventh evidence. verdict rendered a II. con 50, our have of Rule cases adoption
Since right of a sistently emphatically preserved judgment be a whose judgment litigant —whether n. judgment o. set on the aside V-—is entered . ruling on to invoke discretion Mont trial. The these motion for first new cases Duncan, gomery & Co. Ward U. S. where here, granted the unlike judge, motion defendant’s n, v., o. oh to rule doing but so failed The Court of his alternative trial. court’s grant reversed o. the case the defendant remanded with yerdict fpr on the enter directions *16 contention that the overruling defendant’s plaintiff, on his given opportunity pass should judge Holding trial. that the trial new alternative initially on alternative have this judge should ruled judge case to the trial the motion, this remanded Court on In explain that motion. passing purpose the said: the Court ing this result contemplates party to the
“The rule that.either on judge’s to the trial decision entitled action is how- presented. If, if both are motions, ... both present as in ever, instance, the the trial court erred granting party against in the motion whom verdict went is entitled to have his motion for a respect trial consideredin of asserted substantial appealing trial errors and matters to the discretion judge.” Id,., at 251-252. question here, Duncan, however, unlike that Appeals, holding is whether the Court after that failing against District Court erred in direct verdict plaintiff, can then order the dismiss District Court to thereby deprive any the case and the verdict winner of opportunity judge to ask the trial for a new trial in order proof question to cure a defect in in the first trial. This Virginia Pulp was first considered Cone v. West Paper Co., Cone, In U. S. 212. inas case, Appeals was whether the Court of could direct the dismissal of a case which erro hac] neously grant failed to directed verdict. that case judgment no motion for n. o. v. had been made Appeals verdict loser. heldWe that the could under those order the dismissal of the circumstances Noting “[determination case. that of whether a new granted judgment trial should be or a under entered (b) Rule 50 calls for instance first who saw heard witnesses has appellate printed transcript the feel of the case which no impart,” (emphasis added), id., can at we held litigant right “a should not his have to a new trial having without had the benefit of the trial foreclosed question,” (emphasis court’s id., at 217 added). clearly We indicated result have would respondent been the same had the verdict loser, as had the unsuccessfully here, , moved for a n. o. v. in court, case, likewise,, the verdict winner would have had until wait the Court of deprived presenting him of his verdict before his *17 suggestion— specifically rejected for a new trial. We winner the verdict by the Court —that today accepted in a new trial the Court right his should have to claim Id., or lose it. at Cone, re-emphasized emphasized we Following Roman, 571, 332 U. S. Co. v. San Liquor Globe dis- power to are without why reason courts power is that in situations like this miss cases judge exclusively this issue is vested determine Dichmann, again, And in Weade v. the case. who tried Inc., S. where —as Wright Pugh, 337 U. even & v. had n. o. timely case—a Appeals’ affirmed the Court the Court made, been relying on stand, but, holding the verdict could not provide its Liquor, Globe Cone and modified decide whether opportunity with an judge the trial Id., at a new trial. winner was entitled to the verdict York, N. v. New H. 8. See also Johnson 809 and n. Filson, 336 S. 681. Co., 48; S. Fountain v. U. R. 344 U. H. is after justified of whether a new This issue a trial or an aside either set necessary which it was not to decide is a new issue It is a factual issue and that the trial original trial. it has appropriate court is the more tribunal to determine universally accepted by been almost both federal and many throughout years. state courts There are rea- the. Appellate sons for this. tribunals are not equipped to^, try as trial courts A judge factual issues are. who original has heard the evidence in the case has a vast store of information knowledge about it that get court cannot cold, printed from a record. Cone, Thus, as we said in judge can base granted broad discretion him in determining factual issues of a new trial on his own knowledge of the evi- dence and “in perspective the issues á peculiarly available to him alone.” 330 atS., U. 216. The special suitability of a issue a trial decide having *18 line unbroken by long a emphasized this is
cases like of exercise holding of this Court that of decisions refusing in granting or by judges discretion by practically is unreviewable factual trials on Works v. g., Fairmount Glass See, courts. e. appellate 481-482; cited with Co., 474, Coal S. Cub Fork 287 U. Duncan, supra, Ward & Montgomery in Co. v. approval at n. 12. 253, all the cases harmony of with
Today’s decision out opinion attempts to to referred above. The Court’s by to justify grant power appellate pointing its courts courts, assertedly to instances in which those even Court, power past. this have this utilized States, Court cites Pence v. United 332, 316 U. S. York, New N. Henagan, H. & R. Co. H. v. U. S. Pence, 441, Appeals such instances. Court grant reversed trial court’s refusal to o. v. and remanded for further proceedings. consistent We without slightest affirmed indication that we felt the Appeals’ Court deprived mandate the verdict winner of the chance to move for a new trial on remand. Neither did the Court indicate would be the effect of its in Henagan mandate where it remanded the case to the District Court to enter judgment n. o. v. for the verdict loser. And the same cán be said of every almost other post-Cone of appeals decision by cited the Court in note 5. Cf. Johnson New York, N. & H. Co., H. R. supra, 54, at n. 3.
The Court also attempts to justify its new grant of power appellate by judges process strained of.reason- ing. First, suggests Court power of an appellate court to dismiss a case after setting aside a litigant’s verdict can be derived from 28 U. S. §C. 2106. This idea, of course, was first suggested by a dissent in supra, Co., York, R. N. H. & H. New Johnson at 65., of 2106 “the discretion now § that because argued which grant a new trial with the Court rests already according law on the record direct however, was deemed contention, made.” This by the worthy argument or comment either Johnson by who opinion or others dissented its merely general power case. Section 2106 deals with congressional purpose courts and indicates no long-standing practice, overcome the and established recognized this Court’s decisions and Rule new, the discretion to whether a decide should be granted, when gap finds.a *19 supporting evidence, rests with the trial judge and. not the appellate with court. It begs argue appropriate is appellate for an court in cir such cumstances merely § to order a dismissal because provides that court of appeals may entry direct the a. an “appropriate judgment.”
The purports Court further to derive power this provisions (c) Rule 50 (d), The Court notes that under Rule 50 (c).(l), grants where n. o. v. judgment grants and either or denies con- ditional motion for new trial, appellate court in revers- n. o. v. has “the power to ing judgment grant deny a new appropriate cases.” But, as the Court fails to recognize, the crucial prerequisite to the exercise of this appellate power is ruling in the first Cone, instance, required as by the trial court on the motion for new trial. Here that crucial prerequisite is missing.
The Court then proceeds to find Rule 50 (c)(2) inap- plicable on its face to a situation where the trial court n. o. v. but an appellate court orders denies a that one be entered. In doing so, the ignores Committee The' Rules 50(c)(2). of Rule
purpose follows: provision explained (2) is a reminder that the verdict- (c) “Subdivision entry after entitled, even is winner to move for a new trial in the against him, n. o. v. 31 F. R. D. 646. course.” usual remotely indicate that the verdict The rule does if right to move for a new trial winner loses this him against n. o. v. is on court’s direc- court rather than on its ini- by appellate tion own (c) in- tiative. Sections were added to Rule 50 1963, after all the cases discussed above been had decided. As the of the Rules indicate, *20 n provides that the verdict winner, who prevailed on the
motion for judgment v., n. o. '“may, as appellee, -assert grounds entitling him to a new trial in the event appellate Gourt concludes- -that the trial court erred in denying the motion for judg-mént notwithstanding the verdict” (emphasis added) that “nothing and. in this rule precludes it appellate [the court] determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new. trial shall be “is per- the rule finds that Because granted.” to the court direction of its the nature missive 50(d) nothing in Rule “there is it concludes appeals,” not direct of appeals the "court indicating that The Court o. v. appropriate cases.” per- is likewise fact the rule entirely overlooks winner direction to the missive in the nature its “may”, provides that the verdict winner appellee: as it trial; pro- for a new does ask the his protect right he so in to to vide that must do order I Contrary Court, express new trial. think the give power 50 (d) failure court to order a case dismissed indicates a intention clear deny it any power. practice such now permitted (d) Rule 50 was first embodied in the Notes of the Rules Committee to proposed, but amendments unadopted, of 1946. suggested The Notes that a verdict winner ás could, appellee, assign grounds for a Cone, event the court set aside his verdict. however, expressly we rejected the contention verdict winner’s failure, appellee, to assign grounds a new trial in the appellate gave power deny him a new trial. Virginia- Cone v. West &Pulp Paper Co., supra, at 218 and n. 6. rejection This discussed, was extensively by the commentators, most whom concluded that under Cone the verdict winner should be allowed a chance present his trial at the trial court level.3 Finally, when Rule 50 was adopted, there was not slightest indication that it was intended to adopt practice that we found ob- jectionable in Cone. In fact, it was carefully worded giving avoid the appellate court any power to deny^a 3 See, g., e. Comment, 51 Nw. U. L. 397, Rev. (1956); 400-402 Note, 58 Col. L. Rev. (1958). 524-525
342 unintentional, omission this I not believe do
new trial. same at the adopted (c)(1), of Rule 50 language for the power give purport to time, does n. o. v. trial court it_reverses when loser’s conditional already the verdict has denied clearly by that providing trial. so for new It.does with the proceedings shall accordance “subsequent order of the court.” today’s flies in short, decision the teeth Rule (c)(2), and our cases which rule was intended to by implement, giving the Court power, clearly (d), withheld to its judg-' substitute ment for trial and then justice court’s decide that no requires new trial.
III. I agree Even were to with the Court that courts power have the deny to winner a new -trial, agree I could not affirmance of such a denial Here, here. so far as appears record, from the the Court of Appeals gave never a thought even petitioner whether entitled was to a new trial, but simply required that judge district dismiss law- though suit as it were an automatic necessity. peti- And seeking tioner, her support verdict without directing of Appeals’ the Court attention to any grounds for a new n every had trial, right rely on our past cases which plainly told her that she entitled to make her motion for a who far more able to determine whether justice requires a new trial. While breath says one the Court “will not assume ignored the court appeals] its duty” [of to “consider question,” in another breath it notes that matter was not raised of Appeals.” ^t]his And because present failed to grounds for a new trial to the Appeals, the Court, while recog- nizing that she here presents grounds for a new *22 decision, might which require by the trial court, refuses to grounds. consider these
In refusing petitioner’s to consider grounds for a new trial, ignores the completely Court was what done Dichmann, Inc., Weade v. Wright Pugh, supra. There we ordered the case to the pass trial remanded on petitioner’s motion for trial petitioner because suggested to this Court that there was alternative presented by theory complaint and evidence. How ever, nowhere in the record in that case was it indicated argued had petitioner theory that this alternative nothing in Appeals, opinion our indicates requirement. any correctly such The Court summarizes that as “an holding Weade not order judgment n. v. where . the record o. . . reveals a new issue which has not been (Emphasis resolved.” added.) I think here such an the record reveals issue that, very at least, petitioner given should now be argue a chance Appeals. that issue the Court of clearly The record here there gaps reveals that were in petitioner’s which if a might, given chance, case she fill upon First, only new trial. of the eye- one three Neely’s only witnesses to fall and carpenters one of the platform who worked were called as witnesses. Second, testimony the trial court by excluded all the opinions witnesses to their adequacy plat- petitioner’s several of Third, very form. relevant photo- graphs platform were excluded the trial judge. From such circumstances as might these properly have concluded that entitled gaps a new trial to fill in her particularly case. It is pertinent respect that itself said: may, course,
“It be conceded platform might have possibly had something to do with his
fall, nothing but show there is record to what it was.” 344 F. 2d, at cannot as idle surely conjecture
It be dismissed think given if petitioner could, chance, introduce suffi- most fact prove exacting cient evidence to finder diagonal gap platform the three-foot feet something to ground do with this fall above had this death. Notes Committee these amendments were to implement made those deci- sions which emphasized importance had having initially trial judges determine the factual issue of whether a new trial justified in cases where judgment n. o. v. against has been entered the verdict by winner, either trial or court. place Committee at no hinted that the amendments were meant to change the practice established cases, those and, to the contrary, it specifically that, stated “The amendments do not alter - the effects of a verdict on the scope review.” 31 F. R. D. (Emphasis added.) Certainly this is true of Rule (d). This section