delivered the opinion of the Court.
John K. Baker, Jr., and Catherine R. Baker, owners of a Reo truck, sued S. L. Wright, owner of a tractor- *317 trailer, and Donald S. Hower, Ms employee and the operator of the tractor-trailer, for damages to their truck resulting from a collision between the vehicles at the intersection of two state highways in Washington County. Wright filed a counterclaim against the Bakers for damages to the tractor-trailer. George L. McSherry, driver of the Baker truck sued Wright and Hower for personal injuries. The cases were consolidated and submitted to a jury upon issues. There was testimony that Hower was operating on a through highway, that McSherry stopped before he reached the center, and that Hower’s tractor-trailer was on the wrong side of the road at the time of the impact. The jury found that Hower and McSherry were each guilty of negligence directly contributing to the happening of the accident. The court entered judgments for the defendants Wright and Hower in each case, and for the Bakers, cross-defendants in the counterclaim. Wright appeals.
The appellant contends that the court erred in submitting the case to the jury on issues, to which action he objected by special exception. Under Rule 7, III. Trials, Rules of Practice and Procedure, the matter is clearly within the discretion of the trial court, and we find no error. Issues are authorized by the rule and are peculiarly appropriate in consolidated cases. Nor do we find any error in the fact that the appellant, in the consolidated cases, was not accorded the privilege of opening and closing the argument on the merits of his counterclaim.
Shedlock v. Marshall,
The appellant contends that the court erred in refusing to direct verdicts in favor of the defendants Wright and Hower. He presented two demurrer prayers to that effect. The record does not show that the court either granted or denied them. In his brief the appellant states that the court “reserved passing on the demurrer instructions both after the conclusion of the plaintiff’s case and at the end of the entire case and indicated that if there was a judgment against the
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appellant, he would set it aside by judgment N.O.V.” The trial court acted within the bounds of its discretion in reserving its ruling. Eule 4, III. Trials, Eules of Practice and Procedure, provides in part: “Instead of granting or denying the motion for a directed verdict the court may submit the case to the jury and reserve its decision on the motion until after the verdict or discharge of the jury, but for the purpose of appeal such reservation constitutes a denial of the motion, unless judgment is entered for the moving party pursuant to Eule 8.” Eule 8 provides in part: “Whenever the court reserves decision on a motion for a directed verdict and submits the case to the jury, that operates as a motion for judgment under this rule. * * * Failure to move for judgment under this rule does not affect a party’s right upon appeal to assign as error the denial of his motion for a directed verdict.” Although there was no motion for judgment N.O.V., the reservation of the court’s ruling operated as such a motion.
Beck v. Baltimore Transit Co.,
Judgment was entered for the defendant, however, on the strength of the jury’s finding that McSherry was guilty of contributory negligence. Thus, in the' end, the defendant got exactly what he asked for. Any error in the ruling, which we do not suggest, was cured by the verdict.
Sieland v. Gallo,
The appellant now objects to the entry of the judgment in favor of the Bakers, cross-defendants in his counter
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claim, upon the jury’s findings. The answer to this contention is that he did not offer any demurrer prayers or request any binding instructions in connection with the counterclaim. We have recognized that in a proper case, at least where the evidence is undisputed or admits of only one inference, peremptory instructions may be granted upon the issue of contributory negligence,
Garozynski v. Daniel,
Judgment affirmedl, with costs.