Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
Plaintiff-appellant, Edith P. Reitan, brought this action to recover damages resulting from injuries sustained while riding as a paying passenger in a common carrier motor bus insured by defendant-appellee, The Travelers Indemnity Company. There was diversity of citizenship vesting jurisdiction in the district court. In a trial by jury and at the close of all the evidence the trial court granted defendant's motion for a directed verdict and entered judgment dismissing the complaint. This appeal followed. The sole issue before us is whether the trial court erred in taking the case from the jury and directing a verdict for defendant.
The complaint charged the bus driver with negligent operation of the bus and with failing to exercise the highest degree of care for plaintiff's safety consistent with the practical operation of the bus. The trial court found that there was insufficient evidence from which the jury could reasonably infer that defendant's bus driver was negligent, and further that as a matter of law there was no negligence on the part of the bus driver and that plaintiff was guilty of contributory negligence. Under the Wisconsin Comparative Negligence Statute, Wis. Stat. § 331.045 (1957), the legal effect of the latter finding was that the contributory negligence of plaintiff was, as a matter of law, equal to, or greater than, the negligence, if any, of defendant's bus driver. If the trial court was correct in either finding, the verdict was properly directed. We shall first consider the issue relating to the sufficiency of the evidence.
We are governed by the rule that, in a trial of issues of fact before a federal court and jury, if the evidence, with all the inferences that justifiably could be drawn from it, constitutes a sufficient basis for a verdict for the plaintiff or the defendant, as the case may be, then a motion for a directed verdict for the other party should be denied. Burg v. Great Atlantic & Pacific Tea Company, 7 Cir., 1958, 256 F.2d 613. We must determine "whether there is any evidence in the record, together with all reasonable inferences to be drawn therefrom, which would justify submission of this case to the jury." Ibid. Gunning v. Cooley, 1930, 281 U.S. 90, 92, 50 S. Ct. 231, 74 L. Ed. 720; Slocum v. New York Life Insurance Co., 1913, 228 U.S. 364, 369, 33 S. Ct. 523, 57 L. Ed. 879.
As this court said in Nelson v. Business Men's Assur. Co. of America, 7 Cir., 1939, 108 F.2d 363, 365:
"A question of law is thus presented which calls for a consideration of the record, not for the purpose of weighing the evidence, but for the purpose of determining whether there was some evidence. In the consideration of such a question, it is the duty of the court to take that view of the evidence, and all the inferences that may be properly drawn therefrom most favorable to the plaintiff, and, if the evidence is of such a character that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury."
See also Smith v. J. C. Penney Company, 7 Cir., 1958, 261 F.2d 218, 219.
Under either the federal rule or the Wisconsin rule a "scintilla" of evidence is not sufficient to require the submission of an issue to a jury. The more reasonable rule is "'that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'" Gunning v. Cooley, 1930, 281 U.S. 90, 94, 50 S. Ct. 231, 233, 74 L. Ed. 720. Further, while we must consider the evidence in the light most favorable to the plaintiff, as Judge Lindley pointed out in Shaw v. Edward Hines Lumber Co., 7 Cir., 1957, 249 F.2d 434, 439: "'[This] does not mean that we may ignore uncontradicted, unimpeached evidence supporting defendant's position.'"
While we hold to the view that in most cases in which a motion for a directed verdict is made at the conclusion of all the evidence, it would be better practice for the trial judge to withhold his ruling until after the jury has returned a verdict, and then, if he thinks proper, set aside the verdict as not supported by any substantial evidence and grant the motion pursuant to Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., thus giving the reviewing court on appeal the opportunity to reinstate the verdict if it disagrees with him, Shaw v. Edward Hines Lumber Co., supra; yet, a trial judge may, in a proper case, direct the verdict in the first instance.
While the nature and scope of our review is determined by federal law, the substantive question of causal negligence is governed by Wisconsin law. Before examining the applicable Wisconsin cases, we shall first state the facts in the light most favorable to plaintiff and in doing so we can do no better than to set out the substance of her own testimony.
On the day of the accident in question plaintiff was 53 years of age and employed as an instructor and supervisor of nurses at the Wisconsin General Hospital in Madison, Wisconsin. She purchased a bus ticket to Milwaukee, Wisconsin, and entered the bus at the Union Bus Station in Madison accompanied by a friend, Dorothea Frye. Plaintiff was carrying a purse and a small overnight bag. They chose a seat about halfway down the aisle of the bus. Plaintiff put her overnight bag on the luggage carrier rack directly overhead above the seat. Mrs. Frye sat by the window and plaintiff sat on the aisle side. After the bus reached the city of Milwaukee and when about twenty-eight blocks from her destination plaintiff was injured in the manner set out in her following testimony:
"* * * I wanted to be ready to get off the bus. * * * I got up there to get my bag down, so I would be ready to get off when we got into the station. * * * I was standing, of course, facing the windows. * * * And I had one hand on the seat back, and I reached up with my other arm, up to get my bag with the other arm. * * * The bus stopped with a sudden lurch. And I quickly grabbed the seat ahead of me with my other hand. * * * Well, I was - I had been reaching to get my bag, and instead of getting - when the bus stopped so suddenly, I grabbed instinctively for the other seat, which was right by me, and I hung on for dear life. * * * Well, I was trying to keep from falling, and I was depending on that cover that was over that seat. [The "cover" was a plastic strip which slips over the top of the seat back and is held by two elastic bands.] I had it tightly in my hand, and then it came apart where it was sewn on the sides - it pulled entirely apart, and then let me go. So I tried to save myself by taking steps backward, but I couldn't, and so I fell. I struck my arm on the metal base of the seat opposite the driver * * * and I fell on my back * * *. I refused help, and got up by myself and went back to my seat."
On cross-examination plaintiff testified that she had no idea why the bus stopped suddenly; that she was not watching the bus driver and was not looking out of the window at the street; that she was thinking only of getting ready to get off the bus; that she did not claim the bus was traveling at an unreasonable rate of speed at the time of the accident; that the bus driver did nothing unusual or extraordinary in any way until the stop; and that she ...