JOHN W. BLYTH, Appellant,
J. M. QUINBY AND COMPANY, Respondent.
APPEAL by the plaintiff, John W. Blyth, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 12th day of May, 1911, setting aside a verdict in favor of the plaintiff and dismissing the complaint upon the merits, and also from a judgment entered in said clerk's office on the 19th day of May, 1911, pursuant to said order.
Warren Bigelow of counsel [Black, Varian & Somers, attorneys], for the appellant.
Henry B. Corey of counsel [Douglass & Minton, attorneys], for the respondent.
Plaintiff appeals from an order setting aside the verdict in his favor and dismissing his complaint upon the merits, and from the judgment of dismissal entered thereon.
The action is for damages resulting, as it is alleged, from the negligence of defendant's servant. At the close of the plaintiff's case a motion was made to dismiss the complaint, which was denied. At the close of the whole case a motion was again made to dismiss the complaint. Upon this motion the
court reserved decision, and the plaintiff excepted. The case was then sent to the jury, which rendered a verdict in favor of plaintiff. The court granted defendant's motion under section 999 of the Code of Civil Procedure to set aside the verdict, and at the same time granted the motion to dismiss the complaint upon which decision had been reserved.
We are agreed that the plaintiff had failed to make out a case justifying a recovery; that the motion to set aside the verdict was rightly granted, and that the motion to dismiss the complaint should have been granted. The only question, therefore, as to which there is any doubt is whether or not the court had power to reserve decision on the motion to dismiss and to grant it after a general verdict had been rendered in favor of plaintiff. Upon the answer to that question depends the other one, whether or not the case must be sent back for a useless new trial, although we are convinced that plaintiff has failed to show that he has a cause of action.
The question thus presented has been the subject of considerable judicial consideration, although the question of the power of the trial court to so reserve decision upon a motion to dismiss has not been authoritatively determined. It is conceded, and indeed is expressly provided by section 1187 of the Code of Civil Procedure, that the court may so reserve its decision when a special verdict is taken or specific questions of fact put to the jury, and yet it is contended that where a general verdict is taken, involving the decision of the same questions of fact, such decision cannot be reserved. In the present case, as in most actions for damages for negligence, three questions of fact were involved, to wit: (1) Was the defendant guilty of negligence, (2) was the plaintiff guilty of contributory negligence, and (3) what was the plaintiff's damage. These three questions were put to the jury by the charge of the trial justice, and they were distinctly instructed that each must be answered in favor of the plaintiff in order to justify a verdict for him. It certainly seems illogical to hold that if the justice had put these questions to the jury separately he might properly reserve decision on the motion for nonsuit, and yet, because he put the questions collectively, he could not so reserve decision. The purpose of the last three
sentences of section 1187, which were added in 1895 by chapter 946 of the Laws of that year, was to prevent, so far as possible, unnecessary new trials. The section was amended by chapter 131 of the Laws of 1904. The theory was that by taking direct answers to specific questions of fact, the appellate court might direct the entry of the proper judgment, even if required to reverse the judgment at Trial Term. No doubt the amendment has prevented many unnecessary new trials, although some practical difficulties have been found in carrying it out where the appellate court has been asked to reinstate a verdict, or to render a different judgment from that directed at Trial Term. ( Roosevelt v. Nusbaum, 75 A.D. 117.) The language of the amendment of 1895 to section 1187 does not necessarily require us to hold that the trial justice in the present case exceeded his power in reserving decision upon the motion to dismiss until after a verdict had been rendered, and the Court of Appeals in Bail v. New York, N. H. & H. R. R. Co. (201 N.Y. 355) expressly declined to pass upon the power of a justice to do what the trial justice did in this case. In that case the question arose just as it has arisen in this, except that the record showed that neither party objected to the reservation of the motion, and this tacit consent rendered it unnecessary to pass upon the effect of section 1187, and the order dismissing the complaint was affirmed, with the modification that the words 'on the merits' were stricken out. In Russell v. Rhinehart (137 A.D. 843) the practice adopted in the present case is condemned, but the conditions which called out that condemnation were different from those here existing. A motion was made at the close of the case for a nonsuit upon which decision was reserved. A verdict was rendered for plaintiff which was set aside and the motion to dismiss granted. The Appellate Division was of opinion that the motion should have been denied and the verdict allowed to stand, in that respect differing from our view of the present case. The question the court had to decide was whether the verdict should be reinstated, as plaintiff insisted, or a new trial granted, and what the court said in condemnation of the reservation of a motion to dismiss must be read in connection with plaintiff's application for a reinstatement of the verdict.
This question has troubled the courts more than once even where a special verdict has been taken in conceded accordance with section 1187. ( Hoey v. Metropolitan Street R. Co.,70 A.D. 60.) The case of Russell v. Rhinehart (supra) is further distinguishable from the present because there it was the defendant who excepted to the reservation of the motion to dismiss. Here the only exception to the reservation was taken by plaintiff, and it is he who now objects that the justice exceeded his power. It is difficult to see how plaintiff was aggrieved. As we are all agreed, the motion to dismiss should have been granted when made, and the plaintiff certainly suffered no injury because it was not granted until later. His grievance was with the granting of the motion, not with the particular time at which it was granted, and if, as we consider, the motion was properly granted the plaintiff can take nothing by his exception to the reservation of the decision until after the verdict. So also if the court, after verdict, had ...