Marriott v. Fearing

11 F. 846, 1882 U.S. App. LEXIS 2469

Opinion

Wheeler, D. J.

This cause has been heard upon the motion of the plaintiff, after verdict for the defendant, to set aside the verdict and for a new trial. ■ No complaint is made but that the instruction to the jury that the defendant'was in duty bound to provide reasonably safe steps for the accommodation of persons entering to do business with his tenants in the building of which he was an owner and lessor, in accordance with the purposes of the renting, was as favorable to plaintiff as he was entitled to. The evidence as to the actual condition of the steps at the time when the plaintiff slipped upon them and fell, and as to what would constitute reasonably safe steps for the purposes for which these were used, was conflicting; and the proof as to the degree of care used by the plaintiff in attempting to pass over the steps was not so clear in favor of the plaintiff that the court could properly instruct the jury that there was no contributory-negligence on his part. All these questions had to he submitted to the jury, and, notwithstanding the measure of duty laid upon the defendant, they found in his favor. There is nothing to indicate that they were actuated by either passion or prejudice. To grant a new trial would be merely to allow an appeal upon these questions of fact from that jury to another. That is not allowable by the rules of law or the practice of courts.

The motion must be overruled and judgment be entered on the verdict.