
    SAMPSON v. CHANNELL.
    No. 7052.
    District Court, D. Massachusetts.
    Feb. 27, 1939.
    
      James T. Connolly, of Boston, Mass., for plaintiff.
    Thompson & Twomey, Hubert C. Thompson, and Richard J. Dunn, all of Boston, Mass., for defendant.
   McLELLAN, District Judge.

The ensuing statement may be taken, transcribed, and filed with the papers in the case.

This motion has a double aspect, permitted by Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. About the form of the motion there is no controversy. When the matter of its form was just called to my attention by Mr. Thompson, representing the defendant, Mr. Connolly, on behalf of the plaintiff, said he made no objection to the form of the motion.

Pursuant to that portion of the rule providing that whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion, the defendant moves in substance that the verdict and the judgment entered thereon be set aside and that judgment be entered in accordance with her motion for a directed verdict. With this motion is joined a motion in the alternative for a new trial.

The case was tried before a jury, together with that of the plaintiff’s husband, against the same defendant. See Memorandum of Decision on Plaintiff’s Motion for a New Trial in that case — Albert E. Sampson v. Bertha B. Channell, Executrix, 27 F.Supp. 213.

No difficulty presents itself in Mrs. Sampson’s case as to her own due care. She was not driving the car involved in the collision. Any contributory negligence of her husband, who was driving the car, may not be imputed to her, There was evidence sufficient to warrant a finding that personally she was in the exercise of due care. The finding implicit in the verdict that the plaintiff was in the exercise of due care was warranted ,and was not against the weight of the evidence. The jury found specially that the defendant’s testator was negligent. Considering Mrs. Sampson’s testimony warranting a finding that when the car driven by her husband was starting or had already started to skid across the street, the car which on conflicting evidence, the jury could have found was the defendant’s testator’s car was seen by her first 350 feet away and later 125 feet away, together with her testimony and that of her husband that at the, time of the collision the car driven by the latter had come to a full stop, in connection with all the other evidence in the case, I was not prepared to rule as a matter of law that there was no substantial evidence of negligence on the part of the defendant’s testator. Nor am I prepared to do so now.

The defendant’s motion to have judgment entered in accordance with her motion for a directed verdict is denied.

As to the alternative motion for a new trial, while I think the evidence against the defendant’s testator’s negligence was more persuasive than the evidence tending to show such negligence, it is not for me to attempt to substitute my judgment for that of the jury. I cannot say the verdict was so clearly against the evidence that I ought to grant a new trial, or that any other sufficient reason for so doing appears.

In both of its aspects the defendant’s motion is denied.

Note: To the foregoing denial of the defendant’s-motion in its first aspect seeking the entry of judgment for the defendant in accordance with her motion for a directed verdict, her counsel excepted in open court.  