
    KALLAS v. WORTH BROS. CO.
    (Circuit Court, E. D. Pennsylvania.
    January 29, 1908.)
    No. 65.
    TitiAL — 1Taking Case prom Juey — Questions of Pact.
    Where a case is close upon the facts, it should ordinarily not be determined by the court, but by the jury under appropriate instructions.
    [Ed. Note. — For cases in point, see Cent. Dig. vol. 46, Trial, §§ 318-345.]
    At Raw. On motion by defendant for judgment on reserved point notwithstanding the verdict.
    Goodman & Mitchell, for plaintiff.
    Thomas Reaming, for defendant.
   J. B. McPHERSON, District Judge.

It may be conceded that this is a close case, but the concession does not necessarily involve the conclusion that the plaintiff should not recover. ■ On the contrary, a close case upon the facts — that is, a dispute which causes the mind to doubt concerning the inferences that should be drawn — must ordinarily be determined, not by the court but by the jury under appropriate instructions. No complaint is made by either party about the legal rules that were laid down in the charge, and the sole question now is, whether the plaintiff’s claim to recover should have been submitted at all. Upon this question I can only say that, while a -reconsideration of the testimony has not removed the hesitation that I felt at the trial concerning the proper course to be taken, I cannot see my way to the ruling that a binding instruction in favor of the defendant would have been justified. Of course, if such an instruction should have been given, the pending motion should prevail.

Accordingly judgment notwithstanding the verdict cannot be entered, and to this refusal of the motion an exception is sealed at the defendant’s request.  