OPINION OF THE COURT ON PLAINTIFF’S MOTION FOR A NEW TRIAL
HAYES, District Judge.
This action was tried at Salisbury, North Carolina, and a verdict in favor of the defendant was rendered by the jury on the 8th day of October,. 1969. The plaintiff filed a motion in writing for a new trial, which motion appears of record and which in part was directed to an alleged error in the Court’s charge to the jury, but the Court denied the motion and signed a judgment of dismissal on October 8, 1969. In denying that motion the Court in effect ruled that the defendant was entitled to a directed verdict in its favor, in accordance [27] with the motion made by the defendant at the close of the plaintiff’s evidence and renewed at the close of all the evidence, but the Court reserved its ruling on the motion in accordance with Rule 50 of the Federal Rules of Civil Procedure.
The present motion for a new trial by the plaintiff was filed on October 20, 1969, and was based solely on the Judge’s charge to the jury, but to which no exception was taken at the time of trial, nor was it mentioned in the plaintiff’s first motion for a new trial. The motion is in violation of Rule 51 of the Federal Rules of Civil Procedure and is not timely made. The rule in part provides: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the ground of his objection.”
The plaintiff cannot complain of error in instructions to the jury if defendant's motion for a directed verdict ought to have been granted, Weidenfeld v. Pacific Imp. Co., 2 Cir., 43 F.2d 817; Wonnacott v. Denver et al. R. Co., 10 Cir., 187 F.2d 607. This procedural rule is well stated in the latter case at page 608: “For the reason presently outlined, we think the Court should have directed a verdict for the defendant. And it is well settled that an appellant may not be heard to complain of prejudicial errors in the instructions where his adversary was entitled to a directed verdict. That rule is merely the application of a recognized segment of the familiar doctrine that errors which could not have prejudiced the unsuccessful party give no right to a reversal of the judgment.”
The plaintiff failed to prove the existence of any contract between him and the defendant for any definite term. He had worked by the hour, from day to day, for 26 years but there was no proof of any contract to employ him for a definite period. Under the law of North Carolina it is well settled that a contract of employment for an indefinite period is terminable at the will of either party, with or without cause, and that no damages can be recovered for its cancellation, Howell v. Credit Corp., 238 N.C. 442, 78 S.E.2d 146.
Plaintiff did offer proof of his being a machinist member of a labor union which negotiated a contract with defendant and the contract was offered in evidence. Section 34 of that contract is as follows: “An employee will not be dismissed without just and sufficient cause or before preliminary investigation, which shall be held immediately by the highest officer in charge at the point employed. If, after the preliminary investigation, the case is appealed, an investigation will be held within five days and if it is found that the employee has been unjustly taken out of service, he shall be reinstated and paid for time lost.” The evidence conclusively established that he was given a hearing, after notice, which fully met the procedure of the above rule; that he was present and was represented by the Chairman of his Local and other committeemen of his own choosing. The notice is stated below.1 A part of the evidence at the [28] hearing is footnote2; notice of dismissal 3 and Wyatt letter is 4.
The rule is well established in the federal courts that where the evi[29] dence is not disputed or of such conclusive character that a verdict would have to be set aside in the exercise of a sound judicial discretion, a verdict should be directed, Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 303, 69 L.Ed. 597. “The rule for testing the direction of a verdict * * * is that where the evidence is undisputed, or of such conclusive character that if a verdict were réturned for one party * * * it would have to be set aside in the exercise of a sound judicial discretion, a verdict may and should be directed for the other party.”
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OPINION OF THE COURT ON PLAINTIFF’S MOTION FOR A NEW TRIAL
HAYES, District Judge.
This action was tried at Salisbury, North Carolina, and a verdict in favor of the defendant was rendered by the jury on the 8th day of October,. 1969. The plaintiff filed a motion in writing for a new trial, which motion appears of record and which in part was directed to an alleged error in the Court’s charge to the jury, but the Court denied the motion and signed a judgment of dismissal on October 8, 1969. In denying that motion the Court in effect ruled that the defendant was entitled to a directed verdict in its favor, in accordance [27] with the motion made by the defendant at the close of the plaintiff’s evidence and renewed at the close of all the evidence, but the Court reserved its ruling on the motion in accordance with Rule 50 of the Federal Rules of Civil Procedure.
The present motion for a new trial by the plaintiff was filed on October 20, 1969, and was based solely on the Judge’s charge to the jury, but to which no exception was taken at the time of trial, nor was it mentioned in the plaintiff’s first motion for a new trial. The motion is in violation of Rule 51 of the Federal Rules of Civil Procedure and is not timely made. The rule in part provides: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the ground of his objection.”
The plaintiff cannot complain of error in instructions to the jury if defendant's motion for a directed verdict ought to have been granted, Weidenfeld v. Pacific Imp. Co., 2 Cir., 43 F.2d 817; Wonnacott v. Denver et al. R. Co., 10 Cir., 187 F.2d 607. This procedural rule is well stated in the latter case at page 608: “For the reason presently outlined, we think the Court should have directed a verdict for the defendant. And it is well settled that an appellant may not be heard to complain of prejudicial errors in the instructions where his adversary was entitled to a directed verdict. That rule is merely the application of a recognized segment of the familiar doctrine that errors which could not have prejudiced the unsuccessful party give no right to a reversal of the judgment.”
The plaintiff failed to prove the existence of any contract between him and the defendant for any definite term. He had worked by the hour, from day to day, for 26 years but there was no proof of any contract to employ him for a definite period. Under the law of North Carolina it is well settled that a contract of employment for an indefinite period is terminable at the will of either party, with or without cause, and that no damages can be recovered for its cancellation, Howell v. Credit Corp., 238 N.C. 442, 78 S.E.2d 146.
Plaintiff did offer proof of his being a machinist member of a labor union which negotiated a contract with defendant and the contract was offered in evidence. Section 34 of that contract is as follows: “An employee will not be dismissed without just and sufficient cause or before preliminary investigation, which shall be held immediately by the highest officer in charge at the point employed. If, after the preliminary investigation, the case is appealed, an investigation will be held within five days and if it is found that the employee has been unjustly taken out of service, he shall be reinstated and paid for time lost.” The evidence conclusively established that he was given a hearing, after notice, which fully met the procedure of the above rule; that he was present and was represented by the Chairman of his Local and other committeemen of his own choosing. The notice is stated below.1 A part of the evidence at the [28] hearing is footnote2; notice of dismissal 3 and Wyatt letter is 4.
The rule is well established in the federal courts that where the evi[29] dence is not disputed or of such conclusive character that a verdict would have to be set aside in the exercise of a sound judicial discretion, a verdict should be directed, Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 303, 69 L.Ed. 597. “The rule for testing the direction of a verdict * * * is that where the evidence is undisputed, or of such conclusive character that if a verdict were réturned for one party * * * it would have to be set aside in the exercise of a sound judicial discretion, a verdict may and should be directed for the other party.”
The plaintiff admits he was given a free pass to ride defendant’s train from his home near Salisbury to Atlanta where he worked in the machine shops, and from Atlanta .to Salisbury, and it was his custom to go home on the week ends; he admitted that on the night of July 15, 1966, he used the free pass and rode defendant’s train from Atlanta to Salisbury; that he occupied a seat next to Randall Gray, a 12 year old girl passenger, who was unaccompanied by anyone; that he made certain advances to her; he took her picture, he threw his rain coat over her legs and she threw it off, that he kissed her (although he did say the train gave a jerk and caused his lips to hit hers) and he admitted that the child got emotionally upset by his conduct and was crying. The girl reported this to her mother, on her arrival in Baltimore, and was hysterical at the time. It is undisputed that the mother wrote several officers of the defendant, the contents of which are copied in footnote 2; that the defendant traced out the complaint and after finding that plaintiff was the man who frightened the girl, defendant caused its employee Crabtree to board the train at Salisbury and to observe his conduct going back to Atlanta on July 31. The plaintiff substantially admitted .the facts testified to by Crab-tree, especially that plaintiff got off the train in Charlotte and came back with two bottles of Coca Cola; that he opened one and drank about half of it; then took a bottle of tax paid liquor out of his hand bag and poured some of it into the Coca Cola bottle and drank it; that he did likewise with the second Coca Cola bottle; that plaintiff offered Crabtree a drink of it calling it Bourbon, and offered a drink to an army official who was a passenger on the train; after taking a nap, he went through the car, tak[30] ing pictures of various lady passengers; and afterwards he told one of them the picture ought to be sent to a hosiery manufacturer to be used as an ad, to which she objected and demanded he deliver it to her. These facts show that his behavior was offensive to the passengers and injurious to the defendant’s business and constituted good and sufficient cause for his dismissal. A verdict in defendant’s favor ought to have been granted on these undisputed facts.