285 F. 449 | 9th Cir. | 1923
(after stating the facts as above). The only assignment of error is that the trial court denied the motion of the plaintiff in error for an instructed- verdict in its favor. The ground of the motion was that, in view of the provisions of the policy, the evidence was insufficient io sustain a verdict for the plaintiff. No exception was taken to the instructions to the jury. Among other things, the court charged the jury;
“It is for you to consider whether the accident and ensuing death resulted indirectly from the sickness or disease of the insured. If you find that lie jumped or threw himself out of the window intentionally, the plaintiff cannot recover, ° * ° Upon the question whether he was delirious at the moment of his death, that is when he got from the bed through the window, the testimony may be said to be somewhat conflicting, and that is one of the questions and one of the principal questions upon which you are to find from all the evidence. * * * And if you find that in a delirious or partially delirious condition, to escape his nurse and physician, he precipitated himself against and through the window, or — and this is the other branch of the exception in. the policy and the defense of the defendant — or, being too weak to stand, and, contrary to the advice of his physician, he suddenly tried to stand, and, because of his weakness and sickness, fell over and against and through the window, the plaintiff cannot recover.”
By these and other instructions, the issues of fact were made dfeax to the jury. In Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, the court observed that “cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact/’ but added:
“At the same time, the judge is primarily responsible for the just outcome of the trial.”
And on a motion for a directed verdict the court may not weigh the evidence, and if there is substantial evidence both for the plaintiff and the defendant, it is for the jury to determine what facts are established even if their verdict be against the decided preponderance of the evidence. Travelers’ Ins. Co. v. Randolph, 78 Fed. 754, 24 C. C. A. 305; Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 Fed. 463, 20 C. C. A. 596; Rochford v. Pennsylvania Co., 174 Fed. 81, 98 C. C. A. 105; United States Fidelity & Guaranty Co. v. Blum (C. C. A.) 270 Fed. 946; Smith-Booth-Usher Co. v. Detroit Copper Mining Co., 220 Fed. 600,136 C. C. A. 58. In the case last cited this court said :
“The right to a jury trial is guaranteed by the Constitution, and it is not to be denied, except in a clear case. The foregoing decisions, and many others that might be cited, have definitely and distinctly established the rule that if there is any substantial evidence bearing upon the issue, to which the jury might properly give credit, the court is not authorized to instruct the jury to find a verdict in opposition thereto.”
It may be conceded that the evidence in the present case brings it close to the line which divides cases which should be left to the decision of the jury from cases in which verdict should be directed by the court, and the question is not wholly free from doubt. But upon a careful consideration of all the evidence we are not convinced that the court below erroneously denied the motion for an instructed verdict. There was evidence on behalf of the defendant in error which tended to show that the crisis of the illness of the insured had been reached on the morning on which he died. It was shown that his temperature and pulse that morning were normal, and that his illness was of a mild character. There was no evidence that he was too sick to stand on his feet and walk. ,Several hours earlier that morning he had proven his ability to walk. Dr. Strietmann testified that there was absence of the physical conditions he would expect to find following the crisis in pneumonia, such as “a rather rapid heart, a thready sort of pulse, and a weak or collapsed condition.”
It was shown that the insured was a strong man, and that during his illness he took nourishing food. Two physicians who knew him stated that in their opinion, based upon all the facts, he was strong enough on that morning to have stood upon his feet and walked without falling from weakness. The testimony of Mrs. Blake that she heard a noise, and turned back to the room to see what was the cause of it, may have been taken by the jury as indicating the noise of one slipping or stumbling on the floor. Notwithstanding the evidence that the insured had passed through a spell of illness of 5 days’ duration and was to some extent weakened thereby, we cannot say, in the light of all the evidence, that there was no substantial evidence to sustain the conclusion that the accident which happened might have happened to
The judgment is affirmed.