Before MAJOR, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.
Plaintiff was injured while riding as a passenger for hire in defendant's taxicab when it became involved in a collision with a military vehicle*fn1 at the intersection of Cicero and Archer Avenues, Chicago, Illinois. For injuries sustained in this accident of May 27, 1952, plaintiff was awarded $35,000 damages against Yellow Cab Company, by a jury which accompanied its verdict, on June 26, 1953, with an answer to one interrogatory.
In his complaint, plaintiff joined the United States of America, its agent, servant or employee Joseph G. Leak, Jr.,*fn2 and Yellow Cab Company, as defendants. Prior to trial on the merits, and pursuant to stipulation approved by the court below, the United States and Joseph G. Leak, Jr. settled plaintiff's claims against them for $25,000 each. As an integral part of that settlement, plaintiff entered into two separate instruments, running to the United States of America and Joseph G. Leak, Jr., respectively, covenanting not to further prosecute or again sue these two defendants on account of this particular accident. Yellow Cab Company was not mentioned in either instrument. Pursuant to an order entered by the trial court predicated on the aforesaid stipulation and these agreements, plaintiff's suit was dismissed as to all defendants except Yellow Cab Company; the cause proceeding to trial on issues between this latter defendant and plaintiff.
The two instruments, under which the settlement was closed, were not introduced in evidence below and are not part of this record save as two unexecuted forms affixed to the stipulation of plaintiff and those two defendants who were dismissed out of this proceeding. Not until September 25, 1953, when the defendant Yellow Cab Company filed an amendment to "any and all of its pleadings" did it interpose plaintiff's settlements as a defense that the joint tort feasors had been released. After the jury's verdict was affirmed June 25, 1953, defendant obtained leave to file its amended motion for a new trial and for judgment notwithstanding the verdict; both motions were subsequently filed July 23, 1953, followed two days later by a motion, which was allowed, to amend this defendant's pleadings to conform to the proof. Thereafter, Yellow Cab was permitted to amend its motion for a new trial setting forth in the alternative, motions for judgment notwithstanding the verdict or in arrest of judgment. The claim of release was then raised in Yellow Cab's motion for relief from judgment under Fed.Rules Civ.Proc. 60(b)(5), 28 U.S.C.A., in its amended motion for a new trial, and in an amendment to the amendment for a new trial. These several motions were overruled. Yellow Cab brings the final judgment entered on the jury's verdict and the trial court's orders denying defendant's post trial motions for new trial, judgment notwithstanding the verdict, arrest of judgment and relief from judgment before us for review.
Yellow Cab's defense of release was not only tardily raised, but was apparently an afterthought.During oral arguments counsel for the defendant conceded that the case was not tried below on the theory of release. Coupling tardiness with the absence in evidence of the very instruments on which this defendant erects its claim, and seeks our interpretation, goes far toward cutting ground from under the point urged by Yellow Cab. For these reasons we think it unnecessary to further treat any of the contentions sponsored by Yellow Cab concerning that facet of defendant's appeal. We do, however, find that the trial judge acted correctly in denying defendant's motion for relief from judgment under Fed.Rules Civ.Proc. 60(b)(5), 28 U.S.C.A. By that motion, Yellow Cab sought to be relieved from the final judgment because "* * * (5) the judgment has been * * * released, or discharged * * *," but under the state of this record and against the background of matters already noted, we think defendant waived such a defense or right for relief under the Rule.
This brings us to numerous other points, urged by Yellow Cab, as demonstrative of alleged errors committed below, and which can be divided into four general categories: (i) evidentiary questions with alleged prejudice to defendant as derivative factors, (ii) denial of various motions directed at the quality and quantum of evidence, (iii) contentions generated by certain instructions given to the jury, and (iv) phases of the closing argument by counsel for plaintiff. But after scrutinizing the entire record before us we discern no sound legal reason, or warrant, to annul this jury's verdict. Defendant's contentions of prejudice through certain testimony are tenuous ones. For though we are not concerned with weight of testimony or credibility of witnesses, Edwards v. Baltimore & O.R. Co., 7 Cir.1942, 131 F.2d 366, we sifted and tested defendant's assertions which were allied with the parol evidence given by particular witnesses.
Several motions filed by defendant, bring into play Rule 50 of the Federal Rules of Civil Procedure, 28 U.S.C.A., prescribing the procedural program for Federal courts. Johnson v. New York, New Haven & Hartford R. Co., 1952, 344 U.S. 48, 73 S. Ct. 125, 97 L. Ed. 77. Evaluating those errors asserted by defendant, in order to ascertain their efficacy, substantiality and possible existence of prejudice, we note that few automobile tort cases yield a tidy mosaic of evidence on all issues; congruency being the infrequent element. By only narrating a distilled version of the facts traced on this record we have not ignored nuances manifested by the testimony reviewed.
Contact and impact between the army vehicle and defendant's taxicab occurred well within the intersectional perimeter formed by Cicero Avenue running north and south and Archer Avenue traversing it in a northeast-southwest diagonal. Defendant's cab, proceeding southwest on Archer, entered this intersection on a green signal light, to make a turn south on Cicero Avenue. Several witnesses testified as to the northeast bound approach of the army vehicle traveling on Archer Avenue. Drivers of both vehicles involved testified, as did plaintiff, various occurrence witnesses and police officers. Medical evidence sponsored by six doctors was introduced by plaintiff. Considerable space in defendant's brief is devoted to argument concerning items which Yellow Cab variously designates as "12 conflicts in the evidence" and "17 impeachments and contradictions of the plaintiff's witnesses." Not only are these arguments unsatisfying, but we think a fairer reading of this record demonstrates a need for the jury's functions. Sweeney v. Bonacci, 3 Cir., 1949, 173 F.2d 541, 544. This phase of defendant's argument buttresses a well-settled principle applicable here: "Issues that depend on the credibility of witnesses, and the effect or weight of evidence, are to be decided by the jury." Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S. Ct. 231, 233, 74 L. Ed. 720. However, the sympathetic fusion between "highly conflicting facts" and freedom from "substantial prejudicial errors" suggested by Yellow Cab is of no avail here because this record simply does not reflect such errors.
Our description in MacKay v. Costigan, 7 Cir., 1950, 179 F.2d 125, 127, of the close resemblance and effect, between motions for a directed verdict and for judgment notwithstanding the verdict is pertinent:
"* * * they present only a question of law as to whether or not, when all of the evidence with reasonable inferences therefrom is considered in its aspect most favorable to the plaintiffs, there is a total failure or lack of evidence to prove any necessary element of the plaintiff's case."
We find no such deficiencies present here, quite the contrary it being our opinion that as a matter of law plaintiff made a case. Nor was it error for the trial court to deny defendant's motion for a judgment notwithstanding the verdict. Sivert v. Pennsylvania R. Co., 7 Cir., 1952, 197 F.2d 371. This verdict is properly supported by, and not contrary to, the evidence. Defendant had a fair trial and damages levied against it are not, in our opinion, excessive. The motion for a new trial was rightly disposed of below. Garrison v. United States, 4 Cir., 1932, 62 F.2d 41.
In taking up defendant's arguments surrounding jury instruction numbered seven, challenged by Yellow Cab, it is well to recall that when this 1952 accident occurred, traffic lights were operating at the site. Giving plaintiff's instruction seven, supplied the jury with a verbatim reading of § 69 from the Uniform Act, Regulating Traffic on Highways,*fn3 approved July 9, 1935, as amended. When defense counsel was seasonably informed, (Fed.Rules Civ.Proc. 51, 28 U.S.C.A.), by the trial judge that this instruction was to be given, a colloquy*fn4 ensued, during which counsel stated the inapplicability of § 69, supra, to intersections equipped with electric traffic signal lights. But upon inquiry by the trial judge, e.g.: "What is the provision of the statute where there are traffic lights," defense counsel's failure to directly reply thereto, deprived the trial court of the full grounds and precise nature of defendant's objection. Palmer v. Hoffman, 1943, 318 U.S. 109, 119, 63 S. Ct. 477, 87 L. Ed. 645.
Not until defendant reached this court did it spell out the statutory argument proposed in opposition to instruction numbered seven, citing specific and particular sections of the Uniform Act Regulating Traffic on Highways, supra. Failure of defense counsel to comply with the requirement of "* * * stating distinctly the matter to which he objects and the grounds of his objection * * *" under Fed.Rules Civ.Proc. 51, 28 U.S.C.A., is brought into sharp relief by simply comparing his statements, about that instruction, to the trial judge with the same point as developed in Yellow Cab's brief and argument.It is the complete disparity in statutory citations and not formalities of language and style to which we make reference.
We are also aware that during his closing argument to the jury concerning § 69, supra, plaintiff's counsel flatly stated: "It does not say anything about traffif lights at all." Of course that is an accurate observation when examined only within the framework of § 69, supra, but ...