
    No. 250
    WEST. RESERVE GREENHOUSE Co. v LINDEN
    Ohio Court of Appeals, Cuyahoga County.
    No. 4257.
    March 5, 1923
    This opinion has not been published except in Abstract
    AUTOMOBILE — (1) Respondeat Superior — Failure of evidence — (2) Rule as to directing verdict.
    Error to Cuyahoga Common Pleas
    Attorneys — Dowling, Dowling & Moriarty, for the Greenhouse Co.; A. C. Hasse, for Linden.
   PER CURIAM:

Epitomized Opinion

1. Linden recovered judgment of $8,000, against the Gr.eenhouse Co., in the court of common pleas. That court had refused to direct a verdict dismissing the case, at the close of plaintiff’s testimony. This, it is claimed, was error. The only question raised .before the Court of Appeals was whether or not the driver, at the time of the accident, was driving, the machine on behalf of the company. The Appellate Court found that there was sufficient evidence, under the scintilla, to justify the submission of the case to the jury.

2. The court called attention of defendant’s counsel to an error which had crept into his brief, with respect to the proposition that after the motion for a directed verdict was overruled, and" defendant then having put in his testimony, could not' avail himself of the right to háve a motion to direct a verdict thereafter, suggesting that, if it should have been granted in the first place, it would have been the duty of the court to have granted it in the second place, and defendant’s testimony did not alter the condition. ’■

There being evidence before the jury which would compel the court to overrule the motion at the close of the plaintiff’s testimony, it would not necessarily, but generally, prevent him from granting it at the close of all the testimony, if the motion was made in the instant case. It then becomes a question for the jury to weigh the facts from the evidence before it. It is clearly a jury question. The case having been submitted to the jury under a proper charge, to1 which there, is no fault found, and no other question of error being raised, the Appellate Court refused to set aside the verdict, and reverse the case as against the'evidence, and affirmed it.  