Neely v. Martin K. Eby Constr. Co.

386 U.S. 317, 87 S. Ct. 1072 (1967)



A plaintiff whose jury verdict is set aside by the trial court on defendant's motion for judgment notwithstanding the verdict may ask the trial judge to grant a voluntary nonsuit to give plaintiff another chance to fill a gap in his proof. The plaintiff-appellee should have this same opportunity when his verdict is set aside on appeal.


A decedent's survivor brought an action against an engineering firm engaged in the construction of a missile launcher systems for negligent construction, maintenance, and supervision of a scaffold platform used in the construction of a missile silo.  The decedent was employed as a Night Silo Captain for the engineering firm and the survivor alleges that her father's fatal plunge from the scaffold platform was proximately caused by the negligent construction, maintenance and supervision.   At trial, the trial court denied the engineering firm's motions for a directed verdict, and the jury returned a verdict for the survivor. The trial court also denied the manufacturer's motion for judgment notwithstanding the verdict. On appeal, however, the appellate court reversed the judgment of the trial court and ordered dismissal of the action. The case was appealed to the Supreme Court of the United States on certiorari alleging violation of the survivor's right to speedy trial.


Was the appellate court's decision to dismiss the survivor's action consistent with the right to a jury trial?




The Court found no greater restriction to an appellate court's granting judgment notwithstanding the verdict than that imposed upon the trial court. The Court also found that Fed. R. Civ. P. 50(d) gave the survivor the opportunity to present grounds for a new trial following the setting aside of the verdict by the appellate court. The survivor did not suggest such grounds, nor did she petition for a rehearing in the appellate court. The survivor first raised the issue of grounds for a new trial in her brief to the Court, which ruled that it could not consider issues that were not presented to the court of appeals or properly presented to the court. The survivor's argument that the appellate court lacked the power to order judgment n.o.v. lacked merit.

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