[232 U.S. 602, 603] Messrs. Ulysses S. Koons and Vedantus B. Edwards for plaintiff in error.
Messrs. Arthur G. Dickson and Arthur W. Rinke for defendant in error.
Memorandum opinion by direction of the court. By Mr. Chief Justice White:
As administratrix of the estate of her deceased husband, the plaintiff in error sued to recover for the loss occasioned by his death, alleged to have resulted from the negligence of the defendant railroad company. Over the objection of the defendant the case was submitted by the trial court to the jury, and from the judgment entered on the verdict rendered against the railroad company, error was by the company prosecuted from the circuit court of appeals. On the hearing that court, concluding that the evidence did not justify the submission of the case to the jury, reversed the judgment, and in passing upon a motion made by the railroad company in the trial court, pursuant to the Pennsylvania practice for judgment in its favor non obstante veredicto, it was held that the motion was well taken, and the case was remanded to the trial court, not for a new trial, but with directions to enter a judgment for the defendant. -- L. R.A.(N.S.) --, 118 C. C. A. 465, 200 Fed. 359. As the case as made by the pleadings depended not merely upon diverse citizenship, but was expressly based on the employers' liability act, error was prosecuted from this court.
We shall not undertake to analyze the evidence, or review the grounds which led the court below to conclude that error was committed in submitting the case to the jury, because we think it is adequate to say that after a careful examination of the record we see no reason for holding that the court below erred in so deciding. As regards, however, the ruling on the motion for judgment [232 U.S. 602, 604] non obstante veredicto, it is apparent, in view of the recent decision in Slocum v. New York L. Ins. Co. 228 U.S. 364 , 57 L. ed. 879, 33 Sup. Ct. Rep. 523, that error was committed. It follows that our duty is to affirm and modify; that is, to affirm the judgment of reversal, and to modify by reversing so much of the action of the court below as directed the entry of a judgment in favor of the defendant. Conformably to this conclusion it is ordered that the judgment of reversal be, and the same is hereby, affirmed, and that the direction for entry of judgment in favor of defendant be reversed, and the case is remanded to the trial court, with directions to set aside its judgment and grant a new trial.
Affirmed and modified.