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Stanek v. Cole

December 1, 1949

STANEK
v.
COLE ET AL.



Author: Swaim

Before KERNER, FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

This appeal is from a judgment for damages for personal injuries sustained by the plaintiff, Elmer Stanek, in a collision between an automobile in which he was riding, as a passenger, and an automobile owned and driven by the defendant, Harvey L. Cole.

The issues on this appeal as stated by the defendants are:

"1. Did the trial court err in failing to grant defendants' motion to change the answers of the jury, that defendant Cole was negligent as to lookout and that that was a cause of the accident, and in failing to dismiss the complaint?

"2. Did the court err in failing to order a new trial?"

The answers to both of these questions are dependent upon whether the evidence was sufficient to support the finding by the jury that Cole was guilty of causal negligence as to lookout.

The jury in a special verdict found that at or just prior to the collision Cole was not negligent in respect to speed, as to control and management or in failing to dim the headlights on his automobile, but that the defendant was negligent in respect to lookout, and that such negligence was a cause of the collision and of the resulting damages to plaintiff which the jury assessed at $12,000.00.

After the verdict the defendants moved:

(1) To change the answers to the questions on defendants' negligence as to lookout and as to such negligence being a cause of the collision from "Yes" to "No", and to then order judgment dismissing the complaint.

(2) In the event that the court refused to so change said answers that the court enter judgment notwithstanding the verdict for the reason that the finding of the jury on this question was not supported by the evidence.

(3) In the event of such motions being denied, for a new trial.

The Court denied all of defendant's motions after verdict and ordered judgment entered on the verdict.

Since this appeal is based entirely on appellant's contention that there was no basis in the evidence for the jury's finding that the defendant Cole was guilty of causal negligence as to lookout, it ...


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