9 Exercise Nine – Judgment as a Matter of Law


A.  Controlling the Jury

The judgment as a matter of law is one of many devices available to the judge to control the freedom of the jury.  Many other devices available during and after trial, including rulings on evidence and the motion for new trial, also control jury freedom.  This exercise deals only with judgment as a matter of law and its closely-related kin, the binding instruction.  It is probably the most important.  Before discussing this device, we sketch briefly some policy arguments for and against restricting jury freedom.

Two principal arguments favor restricting jury freedom.  First, without a method to take cases away from the jury, the court would be unable to dispose of frivolous cases prior to trial.  For example, a person sues her neighbor, claiming the neighbor was rude to her.  If the jury were totally free to decide issues of law and fact, the plaintiff would be entitled to a jury trial on the issue of whether being rude to one’s neighbor is actionable.  Or take a case in which the facts alleged in the complaint state a claim upon which relief can be granted, but no significant evidence supports the claim.  For example, a person believes he is being poisoned by a neighbor, and so alleges in the complaint.  The only evidence the plaintiff can produce is testimony that his neighbor said churlish things about him.  Obviously, there ought to be some way of preventing such cases from going to the jury.  The normal jury would not even want to hear them.

A second reason for restricting jury freedom is to prevent jury lawlessness.  Were a jury allowed to decide cases on an ad hoc basis, the law would be both uncertain and inconsistent.  Parties in like positions would not be treated alike, and the uncertainty would encourage litigation.  A jury might decide to award damages because it was prejudiced against the defendant, even though no rule of law supported its decision.  A sympathetic jury might decide to award damages to an injured person even though no evidence connects defendant to the injury.  The judgment as a matter of law, and the lesser power to grant a new trial when the verdict is against the weight of the evidence, provide a degree of control by the trial court, which itself is subject to control by a multi‑judge appellate court.

Arrayed against these arguments are those favoring jury freedom:

1. The jury possesses a collective wealth of common sense that allows it effectively to evaluate the testimony of ordinary witnesses.
2. The jury’s collective memory may be superior to the memory of a single judge.  The jurors, working together, may be able to do a better job of piecing together the testimony.
3. Juries are less susceptible to corruption or other forms of improper influence than are judges.  The jury is an ad hoc body summoned for only a few cases, and can perform its duties without feeling the tug of conflicting personal loyalties.
4. The jury, because it is an ad hoc body, may have more courage than the judge.  Even when not elected, the judge may be subject to political influence, or at least the force of public opinion.  In a controversial case, the judge may try to reach a compromise instead of giving complete victory to a controversial litigant.  The jury may be more willing to take controversial stances.5. Many factual disputes in lawsuits are not really susceptible to rational determination.  By delegating decision of these factual disputes to a multi-person body that is perceived as non-political and neutral, the judicial system may produce decisions that are more satisfying to the litigants than would be the case if a single judge made these difficult decisions.

These arguments in favor of jury freedom are stronger when applied to some aspects of the jury’s job than others.  When the jury makes a decision about the credibility of a witness, i.e., when it decides whether the witness is testifying truthfully or falsely, the jury’s collective competence may be superior to that of the trial judge.  Common sense and collective memory may give the jury greater power to search out inconsistencies in testimony or to understand ordinary witnesses.  Also, the bad judge—the one who is subject to improper influence or who does not have the courage to reach a proper decision—is less subject to appellate review on credibility decisions than on the other decisions that a trial judge must make.  This limit on appellate control stems from the fact that credibility decisions are often based upon the appearance and demeanor of the witness at trial—whether the witness hesitated when giving testimony, whether the witness appeared evasive, and so forth.  An appellate court cannot recapture the demeanor of a witness on the basis of the “cold record.”  Therefore, credibility decisions are normally left to the fact-finder at trial.  When this is done, a choice must be made about giving the power to make these credibility decisions either to the trial judge or to the jury.  Many would favor giving the power to the jury.

In contrast, when the decision at trial involves an issue of law, or an issue of whether certain inferences can be drawn from certain facts, the “cold record” is quite adequate for purposes of appellate review.  Therefore, the arbitrary, corrupt, or incompetent trial judge can be controlled by the appellate court;  less reason exists for sending these issues to the jury.  Moreover, the trial judge is often better qualified to decide these issues than is the jury.

B.  Judgment as a Matter of Law

1.  Directed Verdict and JNOV

For hundreds of years, courts and lawyers used the devices of directed verdict and JNOV (judgment n.o.v. or judgment non obstante veredicto).  The only substantial difference between these two devices was the timing of the motion.  The motion for directed verdict was made after the opponent had rested, or at the close of all the evidence.  In either event, the motion was made before the case was given to the jury.  The motion for judgment n.o.v. was in effect a motion for directed verdict delayed until after the jury had returned its verdict.  Hence, the party was asking the court to order entry of judgment in its favor notwithstanding the jury’s verdict in favor of the opponent.

The terminology, though not the timing or purpose of the motions, changed for the federal courts in 1991.  By amendment to Fed. R. Civ. P. 50, the directed verdict and JNOV motions are now the same motion: a motion for judgment as a matter of law.  The idea is that the JNOV is actually a reserved motion for directed verdict.  The common name was adopted to recognize that fact and also to recognize that the directed verdict and the JNOV are really the same motion made at different stages of the proceeding.  In federal practice, a motion for directed verdict had to be made at the close of all the evidence in order to preserve one’s right to make the motion for judgment n.o.v.  This requirement is preserved after the amendment: a motion for judgment as a matter of law (old directed verdict) must be made after the opposing party has been fully heard (typically at the close of all the evidence) in order for a party to renew the motion after the verdict is returned (old JNOV).  Fed. R. Civ. P. 50(b).  This requirement is rooted in the history of the right to jury trial.  See Charles A. Wright & Mary Kay Kane, The Law of Federal Courts § 95, at 685-86 (6th ed. 2002).

We refer to the judgment as a matter of law, but of course the older cases, including the three reproduced later in this exercise, refer to directed verdict and JNOV.  Many states also continue to use the terminology of directed verdict and JNOV.  One can expect lawyers to continue to use the terms, even in federal courts, for some time to come.  In federal courts today, any motion for directed verdict or for JNOV will be treated as a motion for judgment as a matter of law.

The timing of the motion for judgment as a matter of law gives the trial court the option of ruling either before or after the jury’s verdict.  A wise judge who is unsure about whether the motion should be granted prior to submission of the case to the jury may decide to wait until after the jury has returned its verdict.  The jury may moot the issue by returning a verdict in favor of the proponent of the motion.  Even when the jury returns a verdict against the proponent, the proponent will almost certainly move again for judgment as a matter of law later.  Then the trial judge can grant the motion.

The decision to wait may save time and money.  If the appellate court decides that the trial judge was wrong in granting the motion after the verdict, it can reinstate the jury verdict instead of remanding for a new trial.  That saves the litigants and the court system the cost of another trial.  When the trial judge grants the motion prior to submission to the jury, and the appellate court decides the trial judge was wrong, the only likely option is to grant an entire new trial.

On the other hand, judges must decide motions properly.  In a case when the jury should not be allowed to return a verdict in favor of one of the parties, granting the motion prior to submission to the jury saves the jury from going through the useless charade of returning a verdict that will soon be nullified.

The standard for granting a judgment as a matter of law [Fed. R. Civ. P. 50(a)] before the case goes to the jury or a “renewed” judgment as a matter of law [Fed. R. Civ. P. 50(b)] after the jury verdict is returned is necessarily the same, at least in theory.  In practice, however, some judges require a more impressive showing for a judgment as a matter of law before verdict (old directed verdict) than after verdict (old JNOV).  This is so because of the differing treatments on appeal discussed above and also because the judge may be reluctant to take a case from a jury that has sat through the entire trial.

Stated generally, and therefore to some extent incompletely, the question whether a judgment as a matter of law should be granted turns upon whether the jury could reasonably return a verdict in favor of the party opposing the motion.  If no reasonable jury could find for that party on the basis of the evidence that has been presented to it, i.e., reasonable minds could not differ, then the motion should be granted.  As you will see later, this standard, though generally true, is in need of some qualification.

2.  Binding Instructions

The judgment as a matter of law standard is of central importance in understanding another device for controlling the jury—the binding instruction.  A binding instruction tells the jury that it must find a certain fact to be true; the judge decides the issue.  The binding instruction differs from the ordinary instruction, which informs the jury about the law and tells the jury to apply the facts as it finds them.


In a slander case [see Exercise Three, part III.B], defendant in the answer denies publication of a statement calling plaintiff an LSD user and raises the affirmative defense of truth.  In the opening statement to the jury, defendant’s lawyer states that the defense expects to prove both that the LSD statement was made privately (i.e., only to the plaintiff, so the element of publication is missing) and that the LSD statement was true.

Defendant’s lawyer introduces no evidence that would support a reasonable finding the LSD statement was true.  There is a genuine dispute, however, about whether the LSD statement was made publicly or privately.

In instructing the jurors, the court will tell them they can not find that the LSD statement was true, and that the only issue for their decision is whether the LSD statement was made privately.  The court would issue a “binding instruction” on the issue of truth or falsity.

The binding instruction amounts to a partial judgment as a matter of law.  It is issued when one of the parties would not be entitled to a favorable jury determination on a particular issue, but could still win the case because the jury might reasonably find favorably on other issues.  The standard for granting a binding instruction is the same as the standard for granting a judgment as a matter of law.

Often, whether a party is entitled to a judgment or binding instruction on a certain issue will depend upon which party bears the “burden of proof” on that issue.  In saying that a party bears the burden of proof, we mean that the party bears both the burden of persuasion and the initial burden of production.

3.  Burdens of Production and Persuasion

While we commonly hear of the burden of proof, a more exacting analysis identifies two burdens of proof: the burden of production of evidence and the burden of persuading the jury.

A party is said to bear the burden of production, also called the burden of going forward with the evidence, on a particular issue if failure to offer evidence sufficient to support a jury determination on the issue will result in an adverse judgment as a matter of law against it.  In other words, the party with the burden of production must go forward and submit sufficient evidence so that the court can conclude that a reasonable juror could find more likely than not in favor of that party’s position on all issues essential to its case.

Obviously, the allocation of the burden of production is of great importance in deciding which party will be able to prevail on a motion for judgment as a matter of law.  Where to allocate the production burden is a difficult question, and involves consideration of many possible factors.  At the same time, we must recognize that in the broad mine run of cases, the plaintiff, as the party attempting to change the status quo, bears the burden of production (and the burden of persuasion).


In a slander case, plaintiff alleges, and defendant admits, that defendant called plaintiff a thief.  The only issue raised by the pleadings is whether the statement was true, i.e., whether plaintiff is a thief.  Neither party produces any evidence on this issue.  If plaintiff bears the burden of producing evidence that he is not a thief, he will suffer an adverse judgment as a matter of law.  If defendant bears the burden of producing evidence that plaintiff is a thief, she will suffer an adverse judgment as a matter of law.

The foregoing example is a case in which neither party produces any evidence on a dispositive issue of fact.  That is the easiest case.  A judgment as a matter of law will often be justified, however, even when the party with the burden of production produces some evidence relevant to the issue.


Plaintiff alleges that defendant called him a thief, and defendant denies making the statement.  On the issue, plaintiff introduces only evidence that the defendant disliked him.  This testimony has some tendency to suggest that the defendant would say bad things about the plaintiff.  Yet it is a slender reed upon which to base a determination that she called plaintiff a thief.  A jury verdict in plaintiff’s favor would be nearly as arbitrary as one based on no evidence at all.  The judge would be justified in granting a judgment as a matter of law because the plaintiff has not produced sufficient evidence to satisfy his burden of production.

The burden of production  should be distinguished from the burden of persuasion.  A party bearing the burden of production on an issue must produce sufficient evidence to create an issue for the jury.  The rules about burden of production are applied by the court in the decision whether to send the issue to the jury.  Once an issue is sent to the jury, the judge instructs the jury about the burden of persuasion, and rules about burden of persuasion are applied by the jury in determining which party should receive a favorable jury verdict.


The plaintiff bears the burden of persuasion on fact X.  Under the relevant law, the party who bears the burden of persuasion must establish the existence of the fact in dispute by a preponderance of the evidence; in other words, the existence of the fact is more probable than its nonexistence, or more likely than not.  The court will instruct the jury about this rule.  If the jury determines that the existence and nonexistence of fact X are equally probable, it should return a verdict against the plaintiff.

Although the concepts of production burden and persuasion burden are distinct, the weight of the production burden depends upon the weight of the persuasion burden.  For example, if a party has the burden of persuading the jury that there is “virtual certainty” that fact X is true, then to satisfy the burden of production the party would need to convince the judge that he has produced evidence sufficient to allow a reasonable jury to determine that fact X is true to a virtual certainty.  Note that this is not the same thing as saying that the party must convince the judge that fact X is true to a virtual certainty.  A judge might believe that the existence of fact X has not been established to a virtual certainty, while simultaneously believing that a reasonable jury could find its existence more likely than not.

For this exercise, you may assume that the burden of persuasion is the usual one in civil actions of preponderance, i.e., showing that the existence of a fact is more probable than its nonexistence.  Therefore, if the opponent of a judgment as a matter of law motion bears the burdens of production and persuasion, the court, in deciding whether that party came forward with sufficient evidence to satisfy the burden of production, must decide whether a reasonable jury could find the existence of the fact more probable–more likely–than not.

A party who bears the burden of persuasion and the initial burden of production is commonly said to bear the burden of proof.  Usually the same party bears both burdens.  In most jurisdictions, however, the burden of production can shift from one party to the other, and possibly back again, during the course of the trial.  This shifting occurs when the party bearing the initial burden of production has produced evidence of such great weight that the other party will suffer an adverse judgment on the issue if it fails to produce evidence to the contrary.


Plaintiff sues defendant for slander, alleging that defendant called her an LSD user.  The only issue for decision at trial is whether the statement was made.  Plaintiff bears the burden of proof on this issue.

When plaintiff introduces evidence sufficient to permit a reasonable jury to find that the LSD statement was made, she has satisfied her burden of production and is entitled to go to the jury.  Suppose plaintiff goes further, and produces evidence of such probative force that, in the absence of contrary evidence, no reasonable jury could find that the statement was not made.  For example, plaintiff produces testimony of several unimpeached, disinterested witnesses who claim to have heard defendant make the statement.  In most jurisdictions, the plaintiff would then be entitled to a judgment as a matter of law unless defendant produces some contrary evidence.  In such circumstances, the burden of production has shifted to the defendant.  The defendant must go forward to produce evidence sufficient to allow a reasonable juror to decide more likely than not that the statement was not made in order to take the case to the jury.

In the foregoing example, the plaintiff has the burden of proof, that is, the initial burden of production and the burden of persuasion.  When she produces enough evidence to satisfy the burden of production, the case moves into the area of jury control.  When the plaintiff produces overwhelming evidence, the burden of production shifts to the defendant, once again allowing the judge to take control.  When the defendant produces evidence that contradicts plaintiff’s evidence, the case will once again become a matter for the jury to decide.

While most jurisdictions permit the burden of production to shift, the usual rule is that the burden of persuasion never shifts.  It remains always upon the party on whom it was originally cast.  If the plaintiff bears the burden of persuasion upon an issue, then whenever the issue is sent to the jury, the jury will be instructed to find against the plaintiff if he has not satisfied the persuasion burden.  This instruction will be given whether or not the production burden shifted to the defendant at some point in the lawsuit.

Moreover, imposing the persuasion burden on the plaintiff affects the definition of both parties’ burdens of production.  In order to survive a motion for judgment as a matter of law, i.e., satisfy the burden of production, the plaintiff must produce evidence sufficient to permit a reasonable jury to find itself persuaded in her favor.  In contrast, the defendant will survive a motion merely by showing that a reasonable jury could find itself either persuaded in his favor or in equipoise—that is, not persuaded by either side.


(1) Plaintiff’s decedent and defendant’s decedent, driving from opposite directions, crash in the middle of the highway.  Both plaintiff and defendant allege the other driver was solely at fault in crossing the center line.  No evidence is submitted, since there are no witnesses and accident reconstruction is unavailable.  The court will grant a judgment as a matter of law against plaintiff, the party with the burden of production, because no reasonable juror could find more likely than not in favor of plaintiff.  At most, the jurors would be in equipoise as either proposition is equally likely on the evidence submitted.

(2) Plaintiff farmer’s cow is killed on defendant railroad’s tracks.  The only evidence shows that the cow was struck near both a downed fence that is the responsibility of the railroad to maintain and an open gate that is the responsibility of the farmer to keep closed.  The court will grant a judgment as a matter of law against the plaintiff because no reasonable person could find more likely than not that the cow gained access to the tracks over the downed fence instead of through the open gate in this 50-50 case.  The party with the burden of production must provide sufficient evidence so that a reasonable juror could assess the probabilities at least 51-49 in his favor.

4.  Evidence Considered for Judgment as a Matter of Law

We have said that the issue for the court on a motion for judgment as a matter of law is whether the jury could reasonably return a verdict for the party opposing the motion.  This statement is a useful simplification of the standard.  In most jurisdictions, however, it is not precisely correct unless qualified, because the governing law imposes limits upon the evidence that the court may consider in determining whether a finding for the opponent would be reasonable.

No one questions the trial judge’s authority to grant judgment when no evidence has been produced on a material issue, or when so little evidence has been produced by the party bearing the burden of proof that even considering only the evidence in its favor and believing all of it, no reasonable jury could find in its favor.  Moreover, there seems to be general agreement that a judge should grant judgment when the only evidence in favor of the party with the burden of proof is incredible on its face—that is, it is incredible even in the absence of impeachment of the testifying witnesses or contradiction by other witnesses.  For example, the jury cannot be allowed to base a verdict upon testimony by a witness that he inhabits two bodies or that she saw the event by the light of the sun rising in the west.  This is not to say that the court can disregard evidence it disbelieves.  Standard law is that a judgment as a matter of law motion must be decided by the court without weighing credibility and granting all reasonable inferences to the party opposing the motion.  A witness who testifies to facts not inherently incredible must be given full weight.  Even a convicted perjurer’s testimony may not be discounted.

The typical situation is that the opponent of the motion has produced testimony that is not inherently incredible.  In deciding whether to grant judgment, what evidence should the trial judge be allowed to consider?  The judicial answers to this question can, if some variations are overlooked, be placed into three categories.

a. The Favorable–Evidence–Only Test

In determining whether a jury could reasonably find for the opponent of a judgment as a matter of law motion, the court should consider only the evidence favorable to the opponent, completely ignoring any unfavorable evidence.

This test gives the jury power to believe or disbelieve any witness (subject, of course, to the qualification that the jury may not believe a witness whose testimony is incredible on its face).  For example, the jury may believe the testimony of a convicted perjurer even if it is contradicted by the testimony of 20 bishops.  The testimony of the 20 bishops must be ignored by a judge ruling on the judgment as a matter of law motion because it is unfavorable to the opponent of the motion.  Moreover, the jury may disbelieve the testimony of any witness, even if the witness has not been impeached or contradicted.  Therefore, under this test, a court could not grant judgment in favor of a party bearing the burden of proof, since the jury might disbelieve all of that party’s witnesses and find itself unpersuaded.

This test gives the jury a great deal of power, yet does not completely destroy the function of the judgment as a matter of law.  The court can still grant judgment on grounds that, even believing all the favorable testimony and ignoring all other testimony, a jury could not reasonably determine that the party with the burden of proof had established a case by a preponderance of the evidence.


Decedent is found dead under conditions of apparent suicide.  Decedent’s widow brings a civil action against the defendant, claiming that the defendant killed her husband.  She produces the testimony of W that a month before decedent’s death, W saw decedent defeat defendant in a fistfight.  Defendant produces 20 witnesses who were present at the time of the alleged fight.  The 20 witnesses all testify that no fight occurred.

In determining whether to grant a judgment as a matter of law under the favorable-evidence-only test, the court must accept W’s testimony that the fight took place.  There is nothing inherently incredible about a fistfight, and the testimony of the 20 opposing witnesses must be ignored.  The judge should still grant judgment for the defendant, however, because the jury could not reasonably infer that defendant committed murder merely on the basis of testimony that defendant had an earlier fistfight with decedent.

Another way of describing the favorable-evidence-only test is to say that the jury has the power to believe or disbelieve the direct evidence testimony of any witness, but it must be reasonable in drawing inferences from circumstantial evidence.

b. The Qualified Favorable–Evidence Test

In deciding whether the jury could reasonably return a verdict in favor of the opponent of a judgment as a matter of law motion, the court should consider only (a) evidence favorable to the opponent, and (b) evidence unfavorable to the opponent that is not contradicted by direct evidence and that cannot reasonably be disbelieved.  All other evidence must be disregarded.

This test still allows the jury to believe any testimony that is not inherently incredible; however, this test deprives the jury of the power to disbelieve whomever it pleases.  The testimony of the convicted perjurer can still be accepted, even though contradicted by 20 bishops.  The jury cannot disbelieve testimony that is not directly contradicted if it would be unreasonable to do so.  Thus, this test permits granting judgment in favor of the party bearing the burden of proof.


P alleges in his complaint that D called him a murderer.  D answers, denying that she made the statement and admitting all other allegations in the complaint.  P has the burden of proof on whether the statement was made.  P produces as witnesses 20 bishops who testify that they heard D make the statement.  Their testimony is uncontradicted, unimpeached, and disinterested.  D does not cross‑examine the bishops and she rests without producing any evidence.  P is entitled to judgment as a matter of law under the qualified favorable‑evidence test.

Note that the qualified favorable‑evidence test still gives the jury power to resolve contradictions in direct evidence.  Thus, if D had taken the stand and denied making the statement, she would have been entitled to go to the jury despite the contrary testimony of 20 bishops.

Testimony can be contradicted either by direct evidence or by circumstantial evidence.  If D takes the stand and denies making the statement, she has contradicted the bishops with direct evidence.  Both the bishops and the defendant have testified about a fact that they claim to have perceived with their senses.  In the following example, direct evidence is contradicted by circumstantial evidence.


Plaintiff and defendant have a collision in a traffic intersection.  Twenty bishops testify that they were watching the traffic light in the intersection and it was red in plaintiff’s direction.  Their testimony is disinterested and unimpeached.

Plaintiff testifies that he was waiting for the light to change when he saw two cars in front of him start through the intersection.  Plaintiff inferred that the light had changed from red to green and followed them, but does not claim that he actually saw the light change.

If believed, plaintiff’s testimony supports a reasonable inference that the light had changed.  Plaintiff has not, however, produced direct testimony that contradicts the bishops’ testimony;  plaintiff has contradicted the bishops with circumstantial evidence.

In the foregoing example, a belief in plaintiff’s testimony is not logically inconsistent with belief in the bishops’ testimony.  Therefore, granting judgment would not deprive the jury of the power to believe the testimony of any witness;  it would only deprive the jury of the power to disbelieve the bishops’ testimony.  Under the qualified favorable‑evidence test, the trial judge would have power to grant judgment for defendant.

c. The All-the-Evidence Test

In deciding whether the jury could reasonably return a verdict in favor of the opponent of a judgment as a matter of law motion, the court should consider all the evidence, favorable or unfavorable, for both parties.

This test gives the trial judge power to resolve conflicts in direct testimony and to determine whether the jury could reasonably believe or disbelieve witnesses.


The only issue raised by the pleadings is whether defendant called plaintiff a murderer.  Defendant has admitted all the other allegations of plaintiff’s complaint.  Twenty bishops testify that they heard defendant make the statement.  Defendant denies making the statement.  Under the all the evidence test, the trial judge could properly grant judgment as a matter of law against the defendant because the evidence is overwhelming and the jury could not reasonably believe her testimony over that of the 20 bishops.

The all-the-evidence test does not place the trial judge in the position of a juror.  The judge is supposed to defer to the jury and grant judgment only when a jury verdict for the opposing party would be unreasonable.


The only issue raised by the pleadings is whether defendant called plaintiff a murderer.  Defendant admitted all the other allegations of plaintiff’s complaint.

Plaintiff testifies that defendant called him a murderer in the presence of third person T.  Defendant denies making the statement, and T corroborates defendant’s denial.  The judge believes the defendant and T, yet recognizes that reasonable persons could differ about who was telling the truth.  Under the all-the-evidence test, the judge should not grant judgment, since that would be weighing credibility.

The all-the-evidence test has been called the “set-aside” test, because courts adopting it have sometimes said that the judge should grant judgment if, looking at all the evidence, she would feel duty bound to set aside a verdict for the party opposing the motion for judgment as a matter of law.  Linking the test to setting aside a contrary verdict, i.e., granting a new trial on the ground that the verdict is against the weight of the evidence, apparently allows the trial judge to resolve issues of credibility, at least to the extent of ruling that a reasonable jury could not believe a witness’s testimony.  Trial judges have this power when ruling on a motion for new trial, and so linking the judgment as a matter of law test gives them this power when ruling on a motion for judgment as a matter of law.


A.  Introductory Note

This computer-aided exercise was written primarily to explore the three competing standards for judgment as a matter of law.  The debate over the proper test to use to consider the evidence on such a motion continued in the federal courts–and state courts–for more than 50 years following the decision in Wilkerson v. McCarthy, 336 U.S. 53, 69 S. Ct. 413, 93 L.Ed. 497 (1949) [see II.B., infra].  The Supreme Court ended the debate for the federal courts in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L.Ed.2d 105, 121-22 (2000):

Those decisions holding that review under Rule 50 should be limited to evidence favorable to the nonmovant appear to have their genesis in [Wilkerson]. * * *  But subsequent decisions have clarified that [Wilkerson] was referring to the evidence to which the trial court should give credence, not to the evidence that the court should review. In the analogous context of summary judgment under Rule 56, we have stated that the court must review the record “taken as a whole.”  [Citation omitted.]  And the standard for granting summary judgment “mirrors” the standard for judgment as a matter of law, such that “the inquiry under each is the same.”  [Citations omitted.]  It therefore follows that, in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record.

While the question of whether to use the favorable-evidence-only test, the qualified-favorable-evidence test, or the all-the-evidence test has been answered, the interpretations of the ChamberlainWilkerson, and Simblest opinions [see II.B, infra] required in this lesson remain useful as an exercise in reading of opinions, recognition of holding and dictum, and synthesis of cases.

B.  Cases and Questions

Please read the following three federal cases on judgments as a matter of law (remember that these cases will refer to directed verdict and JNOV instead) and answer the following questions before going to the computer terminal.  Be prepared to give reasons for your answers.

1. What arguments can be made that in the Chamberlain case, the Supreme Court endorsed the all-the-evidence test?  Examine the Chamberlain opinion carefully for language supporting or refuting the proposition that the Court endorsed the all-the-evidence (“set-aside”) test, and be prepared to cite sections of the opinion containing such language.

2. What arguments can be made that the Chamberlain case is consistent with the favorable-evidence-only test or with the qualified favorable-evidence test?

3. Is the Wilkerson case consistent with the theory that the Supreme Court follows the all-the-evidence test?

4. Is the Wilkerson case consistent with the theory that the Supreme Court follows the favorable-evidence-only test?

5. Is the Wilkerson case consistent with the theory that the Supreme Court follows the qualified favorable-evidence test?

6. Is the Simblest case consistent with the theory that the Second Circuit had adopted the all-the-evidence test?  The favorable-evidence-only test?  The qualified favorable-evidence test?

Supreme Court of the United States, 1933.
288 U.S. 333, 53 S. Ct. 391, 77 L.Ed. 819.

[§ 1]

Mr. Justice Sutherland delivered the opinion of the Court.

This is an action brought by respondent against petitioner to recover for the death of a brakeman, alleged to have been caused by petitioner’s negligence.  The complaint alleges that the deceased, at the time of the accident resulting in his death, was assisting in the yard work of breaking up and making up trains and in the classifying and assorting of cars operating in interstate commerce;  that in pursuance of such work, while riding a cut of cars, other cars ridden by fellow employees were negligently caused to be brought into violent contact with those upon which deceased was riding, with the result that he was thrown therefrom to the railroad track and run over by a car or cars, inflicting injuries from which he died.

[§ 2]

At the conclusion of the evidence, the trial court directed the jury to find a verdict in favor of petitioner.  Judgment upon a verdict so found was reversed by the court of appeals.  Judge Swan dissenting.  59 F.(2d) 986.

[§ 3]

That part of the yard in which the accident occurred contained a lead track and a large number of switching tracks branching therefrom.  The lead track crossed a “hump,” and the work of car distribution consisted of pushing a train of cars by means of a locomotive to the top of the “hump,” and then allowing the cars, in separate strings to descend by gravity, under the control of hand brakes, to their respective destinations in the various branch tracks.  Deceased had charge of a string of two gondola cars, which he was piloting to track 14.  Immediately ahead of him was a string of seven cars, and behind him a string of nine cars, both also destined for track 14.  Soon after the cars ridden by deceased had passed to track 14, his body was found on that track some distance beyond the switch.  He had evidently fallen onto the track and been run over by a car or cars.

[§ 4]

The case for respondent rests wholly upon the claim that the fall of deceased was caused by a violent collision of the string of nine cars with the string ridden by deceased.  Three employees, riding the nine‑car string, testified positively that no such collision occurred.  They were corroborated by every other employee in a position to see, all testifying that there was no contact between the nine‑car string and that of the deceased.  The testimony of these witnesses, if believed, establishes beyond doubt that there was no collision between these two strings of cars, and that the nine‑car string contributed in no way to the accident.  The only witness who testified for the respondent was one Bainbridge;  and it is upon his testimony alone that respondent’s right to recover is sought to be upheld.  His testimony is concisely stated, in its most favorable light for respondent, in the prevailing opinion below by Judge Learned Hand, as follows [p. 986]:

[§ 5]

“The plaintiff’s only witness to the event, one Bainbridge, then employed by the road, stood close to the yardmaster’s office, near the ‘hump.’  He professed to have paid little attention to what went on, but he did see the deceased riding at the rear of his cars, whose speed when they passed him he took to be about eight or ten miles.  Shortly thereafter a second string passed which was shunted into another track and this was followed by the nine, which, according to the plaintiff’s theory, collided with the deceased’s.  After the nine cars had passed at a somewhat greater speed than the deceased’s, Bainbridge paid no more attention to either string for a while, but looked again when the deceased, who was still standing in his place, had passed the switch and onto the assorting track where he was bound.  At that time his speed had been checked to about three miles, but the speed of the following nine cars had increased.  They were just passing the switch, about four or five cars behind the deceased.  Bainbridge looked away again and soon heard what he described as a ‘loud crash,’ not however an unusual event in a switching yard.  Apparently this did not cause him at once to turn, but he did so shortly thereafter, and saw the two strings together, still moving, and the deceased no longer in sight.  Later still his attention was attracted by shouts and he went to the spot and saw the deceased between the rails.  Until he left to go to the accident, he had stood fifty feet to the north of the track where the accident happened, and about nine hundred feet from where the body was found.”

[§ 6]

The court, although regarding Bainbridge’s testimony as not only “somewhat suspicious in itself, but its contradiction … so manifold as to leave little doubt,” held, nevertheless, that the question was one of fact depending upon the credibility of the witnesses, and that it was for the jury to determine, as between the one witness and the many, where the truth lay.  The dissenting opinion of Judge Swan proceeds upon the theory that Bainbridge did not testify that in fact a collision had taken place, but inferred it because he heard a crash, and because thereafter the two strings of cars appeared to him to be moving together.  It is correctly pointed out in that opinion, however, that the crash might have come from elsewhere in the busy yard and that Bainbridge was in no position to see whether the two strings of cars were actually together;  that Bainbridge repeatedly said he was paying no particular attention;  and that his position was such, being 900 feet from the place where the body was found and less than 50 feet from the side of the track in question, that he necessarily saw the strings of cars at such an acute angle that it would be physically impossible even for an attentive observer to tell whether the forward end of the nine‑car cut was actually in contact with the rear end of the two‑car cut.  The dissenting opinion further points out that all the witnesses who were in a position to see testified that there was no collision;  that respondent’s evidence was wholly circumstantial, and the inferences which might otherwise be drawn from it were shown to be utterly erroneous unless all of petitioner’s witnesses were willful perjurers.  “This is not a case,” the opinion proceeds, “where direct testimony to an essential fact is contradicted by direct testimony of other witnesses, though even there is it conceded a judgment as a matter of law might be proper in some circumstances.  Here, when all the testimony was in, the circumstantial evidence in support of negligence was thought by the trial judge to be so insubstantial and insufficient that it did not justify submission to the jury.”

[§ 7]

We thus summarize and quote from the prevailing and dissenting opinions, because they present the divergent views to be considered in reaching a correct determination of the question involved.  It, of course, is true, generally, that where there is a direct conflict of testimony upon a matter of fact, the question must be left to the jury to determine without regard to the number of witnesses upon either side.  But here there really is no conflict in the testimony as to the facts.  The witnesses for petitioner flatly testified that there was no collision between the nine‑car and the two‑car strings.  Bainbridge did not say there was such a collision.  What he said was that he heard a “loud crash,” which did not cause him at once to turn, but that shortly thereafter he did turn and saw the two strings of cars moving together with the deceased no longer in sight;  that there was nothing unusual about the crash of cars—it happened every day;  that there was nothing about this crash to attract his attention except that it was extra loud;  that he paid no attention to it;  that it was not sufficient to attract his attention.  The record shows that there was a continuous movement of cars over and down the “hump,” which were distributed among a large number of branch tracks within the yard, and that any two strings of these cars moving upon the same track might have come together and caused the crash which Bainbridge heard.  There is no direct evidence that in fact the crash was occasioned by a collision of the two strings in question;  and it is perfectly clear that no such fact was brought to Bainbridge’s attention as a perception of the physical sense of sight or of hearing.  At most there was an inference to that effect drawn from observed facts which gave equal support to the opposite inference that the crash was occasioned by the coming together of other strings of cars entirely away from the scene of the accident, or of the two‑car string ridden by deceased and the seven‑car string immediately ahead of it.

[§ 8]

We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences;  in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover.

[§ 9]

The rule is succinctly stated in Smith v. First National Bank in Westfield, 99 Mass. 605, 611–612, 97 Am.Dec. 59, quoted in the Des Moines National Bank case, supra:

“There being several inferences deducible from the facts which appear, and equally consistent with all those facts, the plaintiff has not maintained the proposition upon which alone he would be entitled to recover.  There is strictly no evidence to warrant a jury in finding that the loss was occasioned by negligence and not by theft.  When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof.  A verdict in favor of the party bound to maintain one of those propositions against the other is necessarily wrong.”

            [§ 10]

That Bainbridge concluded from what he himself observed that the crash was due to a collision between the two strings of cars in question is sufficiently indicated by his statements.  But this, of course, proves nothing, since it is not allowable for a witness to resolve the doubt as to which of two equally justifiable inferences shall be adopted by drawing a conclusion, which, if accepted, will result in a purely gratuitous award in favor of the party who has failed to sustain the burden of proof cast upon him by the law.

[§ 11]

And the desired inference is precluded for the further reason that respondent’s right of recovery depends upon the existence of a particular fact which must be inferred from proven facts, and this is not permissible in the face of the positive and otherwise uncontradicted testimony of unimpeached witnesses consistent with the facts actually proved, from which testimony it affirmatively appears that the fact sought to be inferred did not exist.  This conclusion results from a consideration of many decisions….  A rebuttable inference of fact, as said by the court in the Wabash Railroad case, “must necessarily yield to credible evidence of the actual occurrence.”  And, as stated by the court in George v. Mo. Pac. R.R. Co., supra, “It is well settled that where plaintiff’s case is based upon an inference or inferences, that the case must fail upon proof of undisputed facts inconsistent with such inferences.”  Compare Fresh v. Gilson, 16 Pet. 327, 330, 331, 10 L.Ed. 982.  In Southern Ry. Co. v. Walters, supra, the negligence charged was failure to stop a train and flag a crossing before proceeding over it.  The court concluded that the only support for the charge was an inference sought to be drawn from certain facts proved.  In rejecting the inference, this court said [p. 194]:

[§ 12]

“It is argued that it may be inferred from the speed of the train when some of the witnesses observed it crossing other streets as well as Bond Avenue, and from a guess of the engineer as to the time required to get up such speed after a full stop, that none could have been made at Bond Avenue.  But the argument amounts to mere speculation in view of the limited scope of the witnesses’ observation, the down grade of the railway tracks at the point, and the time element involved.  (Compare Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S. Ct. 564, 70 L.Ed. 1041.)  Five witnesses for defendant [employees] testified that a full stop was made and the crossing flagged, and that no one was hit by the rear of the tender, which was the front of the train.

[§ 13]

“An examination of the record requires the conclusion that the evidence on the issue whether the train was stopped before crossing Bond Avenue was so insubstantial and insufficient that it did not justify a submission of that issue to the jury.”

[§ 14]

Not only is Bainbridge’s testimony considered as a whole suspicious, insubstantial and insufficient, but his statement that when he turned shortly after hearing the crash the two strings were moving together is simply incredible if he meant thereby to be understood as saying that he saw the two in contact;  and if he meant by the words “moving together” simply that they were moving at the same time in the same direction but not in contact, the statement becomes immaterial.  As we have already seen he was paying slight and only occasional attention to what was going on.  The cars were eight or nine hundred feet from where he stood and moving almost directly away from him, his angle of vision being only 3°33¢ from a straight line.  At that sharp angle and from that distance, near dusk of a misty evening (as the proof shows), the practical impossibility of the witness being able to see whether the front of the nine‑car string was in contact with the back of the two‑car string is apparent.  And, certainly, in the light of these conditions, no verdict based upon a statement so unbelievable reasonably could be sustained as against the positive testimony to the contrary of unimpeached witnesses, all in a position to see, as this witness was not, the precise relation of the cars to one another.  The fact that these witnesses were employees of the petitioner, under the circumstances here disclosed, does not impair this conclusion.  Chesapeake & Ohio Ry. v. Martin, 283 U.S. 209, 216–220, 51 S. Ct. 453, 75 L.Ed. 983.

[§ 15]

We think, therefore, that the trial court was right in withdrawing the case from the jury.  It repeatedly has been held by this court that before evidence may be left to the jury, “there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”  Pleasants v. Fant, 22 Wall. 116, 120, 121, 22 L.Ed. 780.  And where the evidence is “so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.”  Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 233, 74 L.Ed. 720;  Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 660, 21 S. Ct. 275, 45 L.Ed. 361.  The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court.  Such a practice, this court has said, not only saves time and expense, but “gives scientific certainty to the law in its application to the facts and promotes the ends of justice.”  Bowditch v. Boston, 101 U.S. 16, 18, 25 L.Ed. 980;  Barrett v. Virginian Ry. Co., 250 U.S. 473, 476, 39 S. Ct. 540, 63 L.Ed. 1092, and cases cited;  Herbert v. Butler, 97 U.S. 319, 320, 24 L.Ed. 958.  The scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned.  Schuylkill & D. Improvement & R. Company v. Munson, 14 Wall. 442, 448, 20 L.Ed. 867;  Commissioners of Marion County v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59;  Small Co. v. Lamborn & Co., 267 U.S. 248, 254, 45 S. Ct. 300, 69 L.Ed. 597;  Gunning v. Cooley, supra;  Ewing v. Goode, supra, at pp. 443–444.

[§ 16]

Leaving out of consideration, then, the inference relied upon, the case for respondent is left without any substantial support in the evidence, and a verdict in her favor would have rested upon mere speculation and conjecture.  This, of course, is inadmissible.  C.M. & St. P. Ry. v. Coogan, 271 U.S. 472, 478, 46 S. Ct. 564, 70 L.Ed. 1041;  Gulf, etc., R.R. v. Wells, 275 U.S. 455, 459, 48 S. Ct. 151, 72 L.Ed. 370;  New York Central R. Co. v. Ambrose, supra;  Stevens v. The White City, supra.

[§ 17]

The judgment of the Circuit Court of Appeals is reversed and that of the District Court is affirmed.

Mr. Justice Stone and Mr. Justice Cardozo concur in the result.


Supreme Court of the United States, 1949
336 U.S. 53, 69 S. Ct. 413, 93 L.Ed. 497

[§ 1]

Mr. Justice Black delivered the opinion of the Court.

The petitioner, a railroad switchman, was injured while performing duties as an employee of respondents in their railroad coach yard at Denver, Colorado.  He brought this action for damages under the Federal Employers’ Liability Act.

[§ 2]

The complaint alleged that in the performance of his duties in the railroad yard it became necessary for him to walk over a wheel‑pit on a narrow boardway, and that due to negligence of respondents, petitioner fell into the pit and suffered grievous personal injuries.  The complaint further alleged that respondents had failed to furnish him a safe place to work in several detailed particulars, namely, that the pit boardway (1) was not firmly set, (2) was not securely attached, and (3) although only about 20 inches wide, the boardway had been permitted to become greasy, oily, and slippery, thereby causing petitioner to lose his balance, slip, and fall into the pit.

[§ 3]

The respondents in their answer to this complaint admitted the existence of the pit and petitioner’s injuries as a result of falling into it.  They denied, however, that the injury resulted from the railroad’s negligence, charging that plaintiff’s own negligence was the sole proximate cause of his injuries.  On motion of the railroad the trial judge directed the jury to return a verdict in its favor.  The Supreme Court of Utah affirmed, one judge dissenting.

[§ 4]

The opinion of the Utah Supreme Court strongly indicated, as the dissenting judge pointed out, that its finding of an absence of negligence on the part of the railroad rested on that court’s independent resolution of conflicting testimony.  This Court has previously held in many cases that where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on those issues.  See, e.g., Lavender v. Kurn, 327 U.S. 645, 652, 653, 66 S. Ct. 740, 743, 744, 90 L.Ed. 916;  Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S. Ct. 1062, 1064, 1065, 87 L.Ed. 1444;  Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S. Ct. 444, 451, 452, 87 L.Ed. 610, 143 A.L.R. 967;  and see Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S. Ct. 232, 234, 88 L.Ed. 239.  It was because of the importance of preserving for litigants in FELA cases their right to a jury trial that we granted certiorari in this case.

[§ 5]

The evidence showed the following facts without dispute:

[Petitioner fell into the railroad’s pit while attempting to cross it on a “permanent board” that straddled it.  For three years, all railroad employees had used the “permanent board” as a walkway.  However, three months before petitioner’s fall, the railroad had placed “safety chains” around the pit.  Petitioner’s position was that the railroad’s employees customarily used the board as a walkway despite the safety chains, and that the railroad’s failure to prevent this use constituted negligence.  The railroad’s position was that only the “pit workers” (who did not include plaintiff) used the permanent board after the safety chains were in place.]

Neither before nor after the chains were put up had the railroad ever forbidden pit workers or any other workers to walk across the pit on the “permanent board.”  Neither written rules nor spoken instructions had forbidden any employees to use the board.  And witnesses for both sides testified that pit workers were supposed to, and did, continue to use the board as a walkway after the chains and posts were installed.  The Utah Supreme Court nevertheless held that erection of the chain and post enclosure was itself the equivalent of company orders that no employees other than pit workers should walk across the permanent board when the chains were up.  And the Utah Supreme Court also concluded that there was insufficient evidence to authorize a jury finding that employees generally, as well as pit workers, had continued their long‑standing and open practice of crossing the pit on the permanent board between the time the chains were put up and the time petitioner was injured.

[§ 6]

It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given.  Viewing the evidence here in that way it was sufficient to show the following:

[§ 7]

Switchmen and other employees, just as pit workers, continued to use the permanent board to walk across the pit after the chains were put up as they had used it before.  Petitioner and another witness employed on work around the pit, testified positively that such practice continued.  It is true that witnesses for the respondents testified that after the chains were put up, only the car men in removing and applying wheels used the board “to walk from one side of the pit to the other….”  Thus the conflict as to continued use of the board as a walkway after erection of the chains was whether the pit workers alone continued to use it as a walkway, or whether employees generally so used it.  While this left only a very narrow conflict in the evidence, it was for the jury, not the court, to resolve the conflict.

[§ 8]

It was only as a result of its inappropriate resolution of this conflicting evidence that the State Supreme Court affirmed the action of the trial court in directing the verdict.  Following its determination of fact, the Utah Supreme Court acted on the assumption that the respondents “had no knowledge, actual or constructive, that switchmen were using the plank to carry out their tasks,” and the railroad had “no reason to suspect” that employees generally would so use the walkway.  From this, the Court went on to say that respondents “were only required to keep the board safe for the purposes of the pit crewmen … and not for all the employees in the yard.”  But the court emphasized that under different facts, maintenance of “a 22–inch board for a walkway, which is almost certain to become greasy or oily, constitutes negligence.”  And under the evidence in this case as to the board, grease and oil, the court added:  “It must be conceded that if defendants knew or were charged with knowledge that switchmen and other workmen generally in the yard were habitually using the plank as a walkway in the manner claimed by plaintiff, then the safety enclosure might be entirely inadequate, and a jury question would have been presented on the condition of the board and the adequacy of the enclosure.”

[§ 9]

We agree with this last quoted statement of the Utah court, and since there was evidence to support a jury finding that employees generally had habitually used the board as a walkway, it was error for the trial judge to grant judgment in favor of respondents.

[Concurring and dissenting opinions omitted]


United States Court of Appeals, Second Circuit, 1970
427 F.2d 1

Timbers, District Judge:

[§ 1]

We have before us another instance of Vermont justice—this time at the hands of a federal trial judge who, correctly applying the law, set aside a $17,125 plaintiff’s verdict and entered judgment n.o.v. for defendant, Rule 50(b), Fed. R. Civ. P., in a diversity negligence action arising out of an intersection collision between a passenger vehicle driven by plaintiff and a fire engine driven by defendant in Burlington, Vermont, during the electric power blackout which left most of New England in darkness on the night of November 9, 1965.  We affirm.


[§ 2]

Plaintiff, a citizen and resident of New Hampshire, was 66 years of age at the time of the accident.  He was a distributor of reference books and had been in Burlington on business for three days prior to the accident.  He was an experienced driver, having driven an average of some 54,000 miles per year since 1922.  He was thoroughly familiar with the intersection in question.  His eyesight was excellent and his hearing was very good.

[§ 3]

Defendant, a citizen of Vermont, had resided in Burlington for 44 years.  He had been a full time fireman with the Burlington Fire Department for 17 years.  He was assigned to and regularly drove the 500 gallon pumper which he was driving at the time of the accident.  He was thoroughly familiar with the intersection in question.

[§ 4]

The accident occurred at the intersection of Main Street (U.S. Route 2), which runs generally east and west, and South Willard Street (U.S. Routes 2 and 7), which runs generally north and south.  The neighborhood is partly business, partly residential.  At approximately the center of the intersection there was an overhead electrical traffic control signal designed to exhibit the usual red and green lights.

[§ 5]

At the time of the accident, approximately 5:27 P.M., it was dark, traffic was light and the weather was clear.  Plaintiff was driving his 1964 Chrysler station wagon in a westerly direction on Main Street, approaching the intersection.  Defendant was driving the fire engine, in response to a fire alarm, in a southerly direction on South Willard Street, also approaching the intersection.

[§ 6]

Plaintiff testified that the traffic light was green in his favor as he approached and entered the intersection;  but that when he had driven part way through the intersection the power failure extinguished all lights within his range of view, including the traffic light.  All other witnesses, for both plaintiff and defendant, testified that the power failure occurred at least 10 to 15 minutes prior to the accident;  and there was no evidence, except plaintiff’s testimony, that the traffic light was operating at the time of the accident.

[§ 7]

Plaintiff also testified that his speed was 12 to 15 miles per hour as he approached the intersection.  He did not look to his right before he entered the intersection;  after looking to his left, to the front and to the rear (presumably through a rear view mirror), he looked to his right for the first time when he was one‑half to three‑quarters of the way through the intersection   and then for the first time saw the fire engine within 12 feet of him.  He testified that he did not hear the fire engine’s siren or see the flashing lights or any other lights on the fire engine.

[§ 8]

Plaintiff further testified that his view to the north (his right) as he entered the intersection was obstructed by various objects, including traffic signs, trees on Main Street and a Chamber of Commerce information booth on Main Street east of the intersection.  All of the evidence, including the photographs of the intersection, demonstrates that, despite some obstruction of plaintiff’s view to the north, he could have seen the approaching fire engine if he had looked between the obstructions and if he had looked to the north after he passed the information booth.  One of plaintiff’s own witnesses, Kathleen Burgess, testified that “maybe five to ten seconds previous to when he was struck he might have seen the fire truck,” referring to the interval of time after plaintiff passed the information booth until the collision.

[§ 9]

Defendant testified that, accompanied by Captain Fortin in the front seat, he drove the fire engine from the Mansfield Avenue Fire Station, seven and one‑half blocks away from the scene of the accident, in the direction of the fire on Maple Street.  While driving in a southerly direction on South Willard Street and approaching the intersection with Main Street, the following warning devices were in operation on the fire engine:  the penetrator making a wailing sound;  the usual fire siren;  a flashing red light attached to the dome of the fire engine;  two red lights on either side of the cab;  and the usual headlights.  Defendant saw plaintiff’s car east of the information booth and next saw it as it entered the intersection.  Defendant testified that he was traveling 20 to 25 miles per hour as he approached the intersection;  he slowed down, applied his brakes and turned the fire engine to his right, in a westerly direction, in an attempt to avoid the collision.  He estimated that he was traveling 15 to 20 miles per hour at the time of impact.  A police investigation found a 15 foot skid mark made by the fire engine but no skid marks made by plaintiff’s car.

[§ 10]

The fire engine struck plaintiff’s car on the right side, in the area of the fender and front door.  Plaintiff’s head struck the post on the left side of his car, causing him to lose consciousness for about a minute.  He claims that this injury aggravated a chronic pre‑existing degenerative arthritic condition of the spine.

[§ 11]

Other witnesses who virtually bracketed the intersection from different vantage points were called.  Frank Valz, called by plaintiff, was looking out a window in a building on the northeast corner of the intersection;  he saw the fire engine when it was a block north of the intersection;  he heard its siren and saw its flashing red lights.  Kathleen Burgess, another of plaintiff’s witnesses (referred to above), was driving in a northerly direction on South Willard Street, just south of the intersection;  seeing the fire engine when it was a block north of the intersection, she pulled over to the curb and stopped;  she saw its flashing lights, but did not hear its siren.  Holland Smith and Irene Longe, both called by defendant, were in the building at the southwest corner of the intersection;  as the fire engine approached the intersection, they each heard its warning signals and saw its flashing lights in operation.

[§ 12]

Defendant’s motions for a judgment as a matter of law at the close of plaintiff’s case and at the close of all the evidence having been denied and the jury having returned a plaintiff’s verdict, defendant moved to set aside the verdict and the judgment entered thereon and for entry of judgment n.o.v. in accordance with his motion for a judgment as a matter of law.  Chief Judge Leddy filed a written opinion granting defendant’s motion.

[§ 13]

On appeal plaintiff urges that the district court erred in granting defendant’s motion for judgment n.o.v. or, in the alternative, in declining to charge the jury on the doctrine of last clear chance.  We affirm both rulings of the district court.


[§ 14]

In determining whether the motion for judgment n.o.v. should have been granted, a threshold question is presented as to the correct standard to be applied.  This standard has been expressed in various ways.  Simply stated, it is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.  See, e.g., Brady v. Southern Railway Company, 320 U.S. 476, 479–80 (1943);  O’Connor v. Pennsylvania Railroad Company, 308 F.2d 911, 914–15 (2 Cir.1962).  See also 5 Moore’s Federal Practice ¶ 50.02[1], at 2320–23 (2d Ed.1968);  Wright, Law of Federal Courts § 95, at 425 (2d Ed.1970).  On a motion for judgment n.o.v. the evidence must be viewed in the light most favorable to the party against whom the motion is made and he must be given the benefit of all reasonable inferences which may be drawn in his favor from that evidence.  O’Connor v. Pennsylvania Railroad Companysupra, at 914–15;  5 Moore, supra, at 2325;  Wright, supra, at 425.

[§ 15]

We acknowledge that it has not been settled in a diversity action whether, in considering the evidence in the light most favorable to the party against whom the motion is made, the court may consider all the evidence or only the evidence favorable to such party and the uncontradicted, unimpeached evidence unfavorable to him.  Under Vermont law, all the evidence may be considered.  Kremer v. Fortin, 119 Vt. 1, 117 A.2d 245 (1955) (intersection collision between fire engine and passenger car).  Plaintiff here urges that under the federal standard only evidence favorable to him should have been considered, citing Wilkerson v. McCarthy, 336 U.S. 53, 57 (1949).  As plaintiff reads that case, the court below should not have considered anything else, not even the uncontradicted, unimpeached evidence unfavorable to him.  However, we are committed to a contrary view in a diversity case.  O’Connor v. Pennsylvania Railroad Companysupra.

[§ 16]

The Supreme Court at least twice has declined to decide whether the state or federal standard as to the sufficiency of the evidence is controlling on such motions in diversity cases.  Mercer v. Theriot, 377 U.S. 152, 156 (1964) (per curiam);  Dick v. New York Life Insurance Company, 359 U.S. 437, 444–45 (1959).  Our Court likewise has declined to decide this issue in recent cases.  Mull v. Ford Motor Company, 368 F.2d 713, 716 n. 4 (2 Cir.1966);  Hooks v. New York Central Railroad Company, 327 F.2d 259, 261 n. 2 (2 Cir.1964);  Evans v. S.J. Groves & Sons Company, 315 F.2d 335, 342 n. 2 (2 Cir.1963).  See 5 Moore, supra, at 2347–50.

[§§ 17 & 18]

Our careful review of the record in the instant case leaves us with the firm conviction that, under either the Vermont standard or the more restrictive federal standard, plaintiff was contributorily negligent as a matter of law;  and that Chief Judge Leddy correctly set aside the verdict and entered judgment for defendant n.o.v. O’Connor v. Pennsylvania Railroad Companysupra, at 914, Presser Royalty Company v. Chase Manhattan Bank, 272 F.2d 838, 840 (2 Cir.1959).

[§ 19]

Under the Vermont standard which permits all the evidence to be considered, Kremer v. Fortin, supra, plaintiff was so clearly guilty of contributory negligence that no further dilation is required.

[§ 20]

Under the more restrictive federal standard—i.e., considering only the evidence favorable to plaintiff and the uncontradicted, unimpeached evidence unfavorable to him—while a closer question is presented than under the Vermont standard, we nevertheless hold that plaintiff was guilty of contributory negligence as a matter of law.

[§ 21]

In our view, applying the federal standard, the critical issue in the case is whether the fire engine was sounding a siren or displaying a red light as it approached the intersection immediately before the collision.  Upon this critical issue, Chief Judge Leddy accurately and succinctly summarized the evidence as follows:

“All witnesses to the accident, except the plaintiff, testified that the fire truck was sounding a siren or displaying a flashing red light.  All of the witnesses except Miss Burgess and the plaintiff testified that the fire truck was sounding its siren and displaying a flashing red light.”

            [§ 22]

The reason such evidence is critical is that under Vermont law, 23 V.S.A. § 1033, upon the approach of a fire department vehicle which is sounding a siren or displaying a red light, or both, all other vehicles are required to pull over to the right lane of traffic and come to a complete stop until the emergency vehicle has passed.  Since the emergency provision of this statute supersedes the general right of way statute regarding intersections controlled by traffic lights, 23 V.S.A. § 1054, the lone testimony of plaintiff that the traffic light was green in his favor as he approached and entered the intersection is of no moment.  And since the emergency provision of 23 V.S.A. § 1033 becomes operative if either the siren is sounding or a red light is displayed on an approaching fire engine, we focus upon plaintiff’s own testimony that he did not see the fire engine’s flashing light, all other witnesses having testified that the red light was flashing.

[§ 23]

As stated above, plaintiff testified that he first saw the fire engine when he was one‑half to three‑quarters of the way through the intersection and when the fire engine was within 12 feet of his car.  At the speed at which the fire engine was traveling, plaintiff had approximately one‑third of a second in which to observe the fire engine prior to the collision.  Accepting plaintiff’s testimony that his eyesight was excellent, and assuming that the fire engine’s flashing red light was revolving as rapidly as 60 revolutions per minute, plaintiff’s one‑third of a second observation does not support an inference that the light was not operating, much less does it constitute competent direct evidence to that effect.  Opportunity to observe is a necessary ingredient of the competency of eyewitness evidence.  Plaintiff’s opportunity to observe, accepting his own testimony, simply was too short for his testimony on the operation of the light to be of any probative value whatsoever.

[§ 24]

Plaintiff’s testimony that he did not see the fire engine’s flashing red light, in the teeth of the proven physical facts, we hold is tantamount to no proof at all on that issue.  O’Connor v. Pennsylvania Railroad Company, supra, at 915.  As one commentator has put it, ” … the question of the total absence of proof quickly merges into the question whether the proof adduced is so insignificant as to be treated as the equivalent of the absence of proof.”  5 Moore, supra, at 2320.  If plaintiff had testified that he had not looked to his right at all, he of course would have been guilty of contributory negligence as a matter of law.  We hold that his testimony in fact was the equivalent of his saying that he did not look at all.

[§ 25]

Chief Judge Leddy concluded that plaintiff was guilty of contributory negligence as a matter of law:  accordingly, he set aside the verdict and entered judgment n.o.v. for defendant.  We agree.

[Discussion of last clear chance doctrine omitted]



Having studied these three opinions and answered the questions immediately preceeding the opinions, you are ready to go to the computer to work through CALI CIV 04: Judgments as a Matter of Law.  The estimated completion time for CALI CIV 04 is two hours, although this exercise can be divided into segments to be completed in separate sittings.


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