BENEDETTO v. W. P. REND COLLERIES CO., 216 F. 143

PER CURIAM. This was an action at law for damages on account of personal injuries suffered by plaintiff in error in the mine of defendant in error. On a consideration of the evidence under the instructions of the court, the jury returned a general verdict in favor of the defendant. One contention for reversal is that the trial court committed an abuse of discretion in denying plaintiff’s motion for a new trial. It is a familiar rule in federal practice that no error can be assigned upon the action of the court in overruling a motion for a new trial.

The only qualification of this general statement is that it is not within the discretion of the trial court to refuse to entertain and consider and pass upon the matters urged by the defeated party as grounds for a new trial. Mattox v. United States, 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917; Felton v. Spiro, 78 Fed. 576, 24 C. C. A. 321. In this case the trial court considered and passed upon the plaintiff’s contention that the jury should have found in his favor under the evidence, and therefore the action of the trial court in ruling upon the motion is not subject to review. McBride v.

Neal (at this term) 214 Fed. 966, 131 C. C. A. 262. There is no assignment that there was not sufficient evidence for the defense to justify the court in submitting the case to the jury. And on examination we find that there was sufficient evidence. Complaint is also made of the action of the court in restricting plaintiff’s counsel in the examination of witnesses. On examination of the record showing counsel’s persistence in repeating questions in substantially the same form after objections had been sustained, we are satisfied that the action of the trial judge was entirely proper.

One serious question might be presented with respect to the ruling of the court in sustaining defendant’s objection to a question propounded by plaintiff to an expert witness, if it were not for the fact that subsequently the expert was permitted to answer substantially the same question. No exception was taken to any portion of the court’s instructions to the jury. We conclude that the cause was submitted on sufficient evidence and under proper instructions, and the judgment is therefore affirmed.