Northern Pac. R. v. Conger

CALDWELL, Circuit Judge, (after stating tbe facts as above.) It is assigned for error that the court refused, at the request of the defendant, at the close of all the evidence in the case, to return a verdict for the defendant. The plaintiff’s evidence, if believed, was sufficient to sustain the verdict. This is not contested, but it is said the plaintiff’s witnesses were unworthy of credit, and that their testimony was disproved by the witnesses for the defendant. It was for the jury to say whether, and how far, the evidence was to be believed. If, by giving credit to the plaintiff’s evidence, and discrediting the counter evidence, the plaintiff’s case was made out, the court should not have withdrawn the case from the jury. One of the grounds for a new trial Avas that the verdict of the jury Avas arrived at by adding together the several sums each juror thought the plaintiff ought to recover, and dividing the aggregate sum by 12. But the allegation was not proved, and was, indeed, disproved. It was not a quotient verdict. Moreover, the denial of a motion for a new trial cannot, be assigned for error. An interview of the plaintiff’s attorney Avith one of the defendant’s witnesses, and Avha t he said about the interview in the course of his argument to tbe jury, is made a ground of exception. The episode was not noticed by the trial court. Iso objection was en-terred, and no exception taken to anything said or done in relation to it. The matter concerned the attorney’s action, and raised a question of professional ethics which had no relation to the case on trial, and cannot affect its decision in this court. If it were otherwise, and the decision of the case depended on our affirming the propriety of the attorney’s action, the judgment below would have to be reversed. The judgment of the circuit court is affirmed.