
    ROBINSON v. NATIONAL TUBE CO.
    (Circuit: Court of Appeals, Third Circuit
    November 29, 1909.)
    No. 41.
    Trial (§ 141) — Taking Question from Jury — Questions of Fact — Conclusiveness of Evidence.
    Where the evidence on an issue is uncontradicted, or of such conclusive character that' the court in the exercise of a sound judicial discretion would be compelled to set aside a verdict returned in opposition to it, such issue may properly be withdrawn from the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 33G; Dee. Dig. § 141.]
    In Error to the Circuit Court of the United States for the Western District of Pennsylvania.
    Action by George W. Robinson against the National Tube Company. Judgment for plaintiff, and he brings error.
    Affirmed.
    Thos. M. & Rody P. Marshall and O. K. Eaton, for plaintiff in error.
    David A. Reéd, Wm. A. Seifert, and Reed, Smith, Shaw & Beal, for defendant in error.
    Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BUFFINGTON, Circuit Judge.

In the court below George W. Robinson brought suit against the National Tube Company to recover damages for injuries caused by negligent blasting operations of the latter. Such negligence, for the purposes, of the case, was conceded, and the evidence confined to proof that Robinson was struck by a missile and to the damage done thereby. On the part of Robinson the contention was that his hearing was entirely sound before the accident, and that thereafter, as the result of a blow on the left side of his head, his right ear suppurated and destroyed his hearing. The plaintiff made no proof of causal connection between the blow on the left side of the head and the subsequent deafness of the right ear. On the other hand, the defendant offered proof that there could be no such causal connection, that Robinson had scarlet fever in childhood, that his right ear had suppurated thereafter, and that his sense of hearing had become impaired before the blasting operations complained of. It also proved by uncontradicted professional testimony that, when examined shortly after the accident, Robinson’s ear bore evidence of chronic suppuration of long standing. Thereupon the trial judge allowed the jury to assess damages for other injuries, but instructed them not to assess damages for loss of hearing. The jury found a verdict for $100, and on entry of judgment plaintiff sued out this writ, assigning for error the judge’s withdrawal from the jury of the assessment of damages for loss of hearing.

We have carefully examined the testimony, and are satisfied the judge was correct in the ruling complained of. As the case was declared on and tried, the contention of the plaintiff rested wholly on his showing that his hearing was unimpaired before the accident, and damages by him for loss of hearing were and could be based only on such contention. On that point, however, the proof was of such overwhelming preponderance that a judge could not have allowed such a verdict to stand. Under such circumstances, it was the duty of the court to prevent a mistrial in that regard, and restrict the consideration of the jury to that portion of the case which alone warranted a verdict. For, as said in Lackawanna Case v. Converse, 139 U. S. 472, 11 Sup. Ct. 569, 35 L. Ed. 213, and restated in Patton v. Texas, 179 U. S. 660, 21 Sup. Ct. 275, 45 L. Ed. 361, the court may “direct a verdict for the plaintiff or thq defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.”

The judgment below will therefore be affirmed.  