The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 434
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250 FEDERAL REPORTER
SPIES v. UNION PAO. R. CO.
(Circuit Court of Appeals, Eighth Circuit. March 11, 1918.)
No. 4984.
1. TRIAL C109-GRouNDs FOR DIRECTION OF VEBDICT-INBUFFICIENCY OF
OPENING STATEMENT TO JURY.
If, after considering the statement to the jury by his counsel of plain-
tiff's cause of action, and after giving counsel an opportunity to explain
or modify it, the court is of opinion that the statement does not set forth
facts sufficient to constitute a cause of action, it has the power to dismiss
the case without prejudice, or to direct a verdict for defendant
2. DISMISSAL AND NONsUIT 4s7, 30-RIGHT TO DisMIss WITHOUT PREJUDICE--
CONDITION OF CAUSE.
A plaintiff may not dismiss without prejudice after a motion for a
directed verdict has been made and submitted, or after such a motion has
been argued and the court has expressed its opinion upon it.
3. DISMISSAL AND NONSUIT 30--RIGHT TO DIsmIss WITHOUT PREJUDICE--
STATORY PRovisION.
Under Rev. St. Neb. 1913, g 7654, which provides that a plaintiff may
dismiss an action without prejudice to a future action "before the final
submission of the case to the jury or to the court where the trial is by
the court," a plaintiff had the right to dismiss without prejudice, where
the court had stated its opinion that the opening statement of counsel
did not state facts sufficient to constitute a cause of action, but before any
motion or suggestion for a directed verdict had been made.
In Error to the District Court of the United States for the District
of Nebraska; Joseph W. Woodrough, Judge.
Action at law by John J. Spies against the Union Pacific Railroad
Company. Judgment for defendant, and plaintiff brings error. Re-
versed.
W. D. Oldham, of Kearney, Neb. (T. J. Doyle, of Lincoln, Neb., on
the brief), for plaintiff in error.
A. G. Ellick, of Omaha, Neb. (Edson Rich, of Omaha, Neb., on the
brief), for defendant in error.
Before SANBORN, Circuit Judge, and TRIEBER and YOU-
MANS, District Judges.
SANBORN, Circuit Judge. Mr. Spies, the plaintiff below, the
driver of an automobile, brought this action for damages which he al-
leged he sustained by reason of a collision of the automobile at a
street crossing with a motor passenger car which the railroad company
was running across the street on one of its tracks. He averred that the
collision and his damages were caused by the negligence of the com-
pany; the latter denied this allegation, and insisted that the negligence
of the plaintiff was the cause of the collision and injury. The case
came on for trial before a jury, and Mr. Oldham, one of the counsel
for the plaintiff, made his opening statement of the facts of the case
to them. At the close of that statement the court first said to him
that his impression, from the statement he had made, was that he could
not maintain the action, that the duty of the court was to order the
=For other cases see ame topic A KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38821/m1/449/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.