Dinet v. Rapid City, S.D., 8 Cir., 222 F. 497; Fricke v. General Accident, Fire Life Assur. Corp., 8 Cir., 59 F.2d 563; Mutual Benefit Health Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856; Mutual Ben. Health Accident Ass'n v. Thomas, 8 Cir., 123 F.2d 353; Minnehaha County, S.D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159. This rule has been oft repeated by this court.
If the case was tried to the jury as a matter of right, the test to be applied is the sufficiency of the evidence to submit the case to a jury, defendant having moved for a directed verdict at the close of the evidence and for judgment n. o. v. as authorized by Fed.R.Civ.P. 50(b). Tsai v. Rosenthal, 297 F.2d 614, 618 (8th Cir. 1961); Harnik v. Lilley, 167 F.2d 159, 160 (8th Cir. 1948). The same test is applied where a jury trial was not a matter of right but was granted with the consent of the parties. Fed.R.Civ.P. 39(c).
The shipowner forgets that an appellate court will not interfere with a judgment entered on a verdict returned by a jury simply because of its opinion as to the weight or preponderance of the evidence. Liberty Mutual Insurance Co. v. Thompson, 5 Cir., 1948, 171 F.2d 723; Harnick v. Lilley, 8 Cir., 1948, 167 F.2d 159; 5 Moore's Federal Practice ¶ 38.08(5), p. 89. In any event, that finding is fully supported by the record.
To warrant this Court in considering the question of the sufficiency of the evidence to sustain a verdict, that question must have been presented to the trial court by a motion for a directed verdict, by a request for instructions or by some other affirmative action. Hoblik v. United States, 8 Cir., 151 F.2d 971; Minnehaha County, S.D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159. In the instant case the complaint goes to the amount of the verdict.
Dinet v. Rapid City, S.D., 8 Cir., 222 F. 497; Fricke v. General Accident, Fire Life Assur. Corp., 8 Cir., 59 F.2d 563; Mutual Benefit Health Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856; Mutual Ben. Health Accident Ass'n v. Thomas, 8 Cir., 123 F.2d 353; Minnehaha County, S.D. v. Kelley, 8 Cir., 150 F.2d 356; Harnik v. Lilley, 8 Cir., 167 F.2d 159; Een v. Consolidated Freightways, 8 Cir., 220 F.2d 82. The argument that the circumstances in the instant case are so exceptional that the denial of the motion for a new trial should be held to be such an abuse of discretion as to warrant a reversal is, we think, wholly without merit.
So far as appears from the record Jamestown did not, at the close of all the evidence, renew its demand for a directed verdict. Such a failure has been held sufficient to preclude review of the sufficiency of evidence in actions at law by an appellate court. Minnehaha County, S.D. v. Kelley, 8 Cir., 150 F.2d 356; Hart v. Grim, 8 Cir., 179 F.2d 334; Harnik v. Lilley, 8 Cir., 167 F.2d 159; Novick v. Gouldsberry, 9 Cir., 173 F.2d 496. Our conclusion, however, does not rest on this inadvertent omission on the part of counsel, for in our view there was substantial evidence in support of the verdict, and no reversible error as to Jamestown was committed by the court below. The pertinent facts are as follows. Jamestown's delivery truck rounded a curve on Depot Street and was proceeding east in the Borough of St. Marys. The curve is approximately 200 feet from the point at which the accident occurred.
Hansen v. Boyd, 161 U.S. 397, 403, 16 S.Ct. 571, 40 L.Ed. 746; Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722; Heskett v. United States, 9 Cir., 58 F.2d 897, 902; Smith v. United States, 5 Cir., 63 F.2d 110. Upon the trial of a jury case, in order to preserve for review the question of the sufficiency of the evidence, a party who believes that he is entitled to a verdict as a matter of law must, at the close of all of the evidence, make a motion for a directed verdict in his favor and secure a ruling thereon from the court. Harnik v. Lilley, 8 Cir., 167 F.2d 159, 160-161 and cases cited; Black, Sivalls Bryson, Inc. v. Shondell, 8 Cir., 174 F.2d 587, 591. There is little substance and no merit in the contention that the District Court committed prejudicial error in failing to sustain a challenge to a prospective juror for cause. Briefly and generally stated, the following is what occurred: One juror, out of a panel of eighteen, stated on his voir dire examination by the court that he had a casual acquaintance with the attorney for the plaintiff; that the attorney was a customer of one of the salesmen of the firm with which the juror was connected and which was engaged in selling securities.
We are therefore precluded from concerning ourselves with the question of the sufficiency of the evidence to support the judgment." See, also, Harnik v. Lilley, 8 Cir., 167 F.2d 159, 160-161 and cases cited. The defendant made no objections and took no exceptions to the instructions given by the District Court to the jury.
That this has often been held to be the rule is shown by many cases. Foster v. Denny Motor Transfer Co., 7 Cir., 100 F.2d 658, 659; Butte Copper Zinc Co. et al. v. Amerman et al., 9 Cir., 157 F.2d 457, 458; Harnik v. Lilley, 8 Cir., 167 F.2d 159, 160; Baltimore O. Ry. Co. v. Postum, D.C., 177 F.2d 53, 54. And see Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720. While the substantial evidence rule, so far as we are aware, has not been expressly repudiated by the Supreme Court, yet the language employed in recent cases makes it of doubtful meaning. For instance, in Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S.Ct. 413, 418, 93 L.Ed. 497, the court stated: "* * * And peremptory instructions should not be given in negligence cases `where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences.' Washington G.R. Co. v. McDade, 135 U.S. 554, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235. Such has ever since been the established rule for trial and appellate courts.
In this situation the question of the sufficiency of the evidence to sustain the verdict and judgment is not reviewable in this court. Harnik v. Lilley, 8 Cir., 167 F.2d 159; Black, Sivalls Bryson v. Shondell, 8 Cir., 174 F.2d 587. In the course of the trial counsel for plaintiff offered in evidence two blue print copies of maps of certain portions of United States Highway No. 2.