Fruth v. Benassi

219 F. 549, 135 C.C.A. 317, 1915 U.S. App. LEXIS 1651

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 4, 1915
• Docket: No. 4216
• Status: Published

Opinion

CARLAND, Circuit Judge.

This is an action to recover damages for the death of Luigi Benassi, alleged to have been caused by the negligence of plaintiffs in error. There was a judgment for defendant in error to reverse which the case has been removed here. The only points discussed in the brief of counsel for plaintiffs in error are;

1. There' was no evidence introduced showing negligence on the part of plaintiffs in error.

2. The evidence showed that the defendant in error was guilty of Contributory negligence.

3. The evidence showed that the death of Benassi was due to a risk which he had assumed.

4. That the verdict is contrary to the evidence.

[1, 2] An examination of the record, however, does not disclose any ruling made by the trial court reviewable here upon these questions. Counsel for plaintiffs in error at the close of the evidence for plaintiff below, moved for a directed verdict in his favor. This being denied, he introduced evidence, which was a waiver of the motion. At the close of all the evidence, counsel said: “I wish the record to show a formal renewal of our motion for a directed verdict.” This is all the record shows on this point. If we shall in a spirit of fairness treat the record as showing the. motion renewed, it does not carry us far, as there must have been a ruling and exception thereto in order to review the questions sought to be raised, and in the same spirit of fairness towards the court we cannot treat the record as showing a ruling which, so far as the record shows, was never made.

[3] The ruling on the motion for a new trial is not reviewable here, as we have had occasion to remark many times at each term of this court. In Liebing v. Matthews, 216 Fed. 1, 132 C. C. A. 245, Judge Smith, speaking for this court, said:

"Bearing tbis in mind, it bas been so long settled that the ruling on a motion for a new trial cannot be reviewed in an appellate court as to scarcely require the citation of authorities.”

The judge, of course, was speaking of a federal appellate court.

We might treat the errors assigned and not argued as abandoned, but we have considered them and find them without merit.

The judgment below must be affirmed; and it is so ordered.