Opinion
No. 9338.
Argued April 29, 1964.
Decided May 1, 1964.
Norwood Robinson and G.D. Humphrey, Jr., Winston-Salem, N.C. (Hudson, Ferrell, Petree, Stockton, Stockton Robinson, Winston-Salem, N.C., on the brief) for appellant and cross-appellee.
Roy L. Deal, Winston-Salem, N.C. (Fred S. Hutchins and Deal, Hutchins Minor, Winston-Salem, N.C., on the brief), for appellee and cross-appellant.
Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.
This is an action for personal injuries incurred by the plaintiff while he was unloading a boxcar of paper shipped by the defendant. After the jury returned a verdict for the plaintiff on the issues of negligence, contributory negligence and damages, the court entered judgment n.o.v. for the defendant on the grounds that the evidence showed contributory negligence as a matter of law. The court also conditionally granted the defendant's motion for a new trial, if this court should set aside the judgment n.o.v. Fed.R.Civ.P. 50(c)(1).
We cannot agree on this record that the evidence supports the court's finding that the plaintiff was guilty of contributory negligence as a matter of law. Nor can we say that the court abused its discretion in conditionally granting a new trial. The judgment is vacated and the case remanded.
Remanded.