Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967)

Author: Justice Black

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Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967)

MR. JUSTICE BLACK, dissenting.

I dissent from the Court’s decision in this case for three reasons: first, I think the evidence in this case was clearly sufficient to go to the jury on the issues of both negligence and proximate cause. Second, I think that, under our prior decisions and Rule 50, a court of appeals, in reversing a trial court’s refusal to enter judgment n.o.v. on the ground of insufficiency of the evidence, is entirely powerless to order the trial court to dismiss the case, thus depriving the verdict winner of any opportunity to present a motion for new trial to the trial judge who is thoroughly familiar with the case. Third, even if a court of appeals has that power, I find it manifestly unfair to affirm the Court of Appeals’ judgment here without giving this petitioner a chance to present her grounds for a new trial to the Court of Appeals as the Court today for the first time holds she must.


Petitioner and respondent, both in their briefs on the merits and in their oral argument, have vigorously and extensively addressed themselves to the question of whether the lower court was correct in holding that petitioner’s evidence of negligence and proximate cause was insufficient to go to the jury. The Court, however, conveniently avoids facing this issue -- which, if resolved in petitioner’s favor, would completely dispose of this case{1} -- by a footnote statement that this issue was not presented in the petition for certiorari nor encompassed by our order granting certiorari. Besides the fact that this seems to me to be an overly meticulous reading of the petition for certiorari and our order granting it,{2} I see no reason for the Court’s refusal to deal with an issue which is undoubtedly present in this case even though not specifically emphasized in the petition for certiorari. Although usually this Court will not consider questions not presented in the petition for certiorari, our Rule 40(1)(d)(2) has long provided that "the court, at its option, may notice a plain error not presented," and the Court has frequently disposed of cases by deciding crucial issues which the parties themselves failed to present. See, e.g., Brotherhood of Carpenters v. United States, 330 U.S. 395; Silber v. United States, 370 U.S. 717; Boynton v. Virginia, 364 U.S. 454. If, as I believe, the Court of Appeals was wrong in concluding that the evidence was insufficient to go to the jury, then its reversal of the jury’s verdict was a violation of the Seventh Amendment, and certainly this is the kind of plain constitutional error that this Court can and should correct.

That the evidence was more than ample to prove both negligence and proximate cause is, I think, inescapably clear from even a cursory review of the undisputed facts in this record. Petitioner’s father was killed while working on the construction of a missile-launching silo in Colorado. Neely worked for an engineering firm, and his job was to work on certain concrete blocks suspended 130 feet from the bottom of the silo. Respondent, a carpentry firm responsible for the construction, maintenance, and supervision of all scaffolding in the silo, constructed a wooden platform between two of the concrete blocks in order to allow workers such as Neely to go from one block to the other. The platform, however, did not cover the entire distance between the blocks, nor was it level with them. Instead, it was two feet horizontally away from either block, and was raised two feet vertically above the blocks. Also, a railing was constructed on one side of the platform between it and one of the blocks. No railing was placed on the other side of the platform. When Neely, along with three fellow workers, arrived at the silo, they were told by respondent’s foreman that the platform was ready. The only way they could get from the platform to the blocks was by jumping the gap between the platform and blocks. However, because of the railing on one side of the platform, the workers could not jump directly across the two-foot gap to the block on that side, but had either to jump three feet diagonally to the block or to climb over the railing. One worker successfully leaped to the block, fastened his safety belt, and then looked back and saw Neely, who was to follow, falling head first through the hole between the platform and the block. Neely, failing to make the jump, fell to his death 130 feet below.

Petitioner’s case consisted of the testimony of the day foreman, one of the carpenters who constructed the platform, and the worker who was closest to Neely when he fell. Quite understandably, in view of the strong evidence, petitioner did not call to testify the two other workers who witnessed Neely’s fall, or the other carpenters who worked on the platform. She did, however, introduce several revealing photographs of the platform blocks and intervening gap taken immediately after the accident. On respondent’s objection, the trial judge excluded several other photographs which showed nets which, after the accident, were placed under the platform for the safety of the investigators. There was testimony that neither the railing nor platform broke, and that there was no grease on the platform. But when petitioner’s counsel asked the day foreman whether he considered the platform safe and adequate, he replied in the negative, though this testimony, on respondent’s objection, was then ordered stricken as opinion evidence on an ultimate issue. The trial court refused to allow the same question to be asked of the other witnesses. At one time, the carpenter did testify that a railing was put on only one side of the platform because lunch hour was nearing, and the platform had to be completed before then.

On this evidence, which the trial judge characterized as presenting a "close case," the Court of Appeals held a verdict should have been directed for respondent. Although the court was willing to assume that there might be some negligence in the size of the platform or the placing of the railing along one side, and though it was willing to concede "that the platform might possibly have had something to do with his [Neely’s] fall," 344 F.2d 482, 486, the court purported to find no evidence, not even circumstantial evidence, that the construction of the platform was the proximate cause of the fall. I think this holding cries for reversal. If constructing a platform 130 feet in the air, at which height workmen use safety belts, with a three-foot diagonal gap over which workers must leap and with a railing which makes a direct jump impossible, does not itself show negligence and proximate cause, then it is difficult to conceive of any evidence that would. Besides the size of the platform and the presence of the railing, the photographs shown to the jury, and reproduced in this record, reveal other possible defects in its construction: a vertical kickboard extending beyond the railing into the gap through which Neely jumped; rough boards on the floor of the platform. The fact that Neely was coming head-first by the time he passed the block two feet below might have made it reasonable for the jury to have concluded that he tripped on these impediments, rather than merely stepped in the opening. In short, I believe it was a clear violation of the Seventh Amendment to deprive petitioner of a jury verdict rendered on this evidence.


Since the adoption of Rule 50, our cases have consistently and emphatically preserved the right of a litigant whose judgment -- whether it be a judgment entered on the verdict or judgment n.o.v. -- is set aside to invoke the discretion of the trial court in ruling on a motion for new trial. The first of these cases was Montgomery Ward & Co. v. Duncan, 311 U.S. 243, where the trial judge, unlike here, granted the defendant’s motion for judgment n.o.v. but, in doing so, failed to rule on his alternative motion for a new trial. The Court of Appeals reversed the trial court’s grant of judgment n.o.v. to the defendant, and remanded the case with directions to enter judgment on the verdict for the plaintiff, overruling defendant’s contention that the trial judge should be given an opportunity to pass on his alternative motion for new trial. Holding that the trial judge should have initially ruled on this alternative motion, this Court remanded the case to the trial judge for the purpose of passing on that motion. In explaining this result, the Court said:

The rule contemplates that either party to the action is entitled to the trial judge’s decision on both motions, if both are presented. . . . If, however, as in the present instance, the trial court erred in granting the motion the party against whom the verdict went is entitled to have his motion for a new trial considered in respect of asserted substantial trial errors and matters appealing to the discretion of the judge.

Id. at 251-252.

The question here, however, unlike that, in Duncan, is whether the Court of Appeals, after holding that the District Court erred in failing to direct a verdict against the plaintiff, can then order the District Court to dismiss the case, and thereby deprive the verdict winner of any opportunity to ask the trial judge for a new trial in order to cure a defect in proof in the first trial. This question was first considered in Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212. In Cone, as in this case, the question was whether the Court of Appeals could direct the dismissal of a case in which the trial court had erroneously failed to grant a directed verdict. In that case, no motion for judgment n.o.v. had been made by the verdict loser. We held that the Court of Appeals could not, under those circumstances, order the dismissal of the case. Noting that

[d]etermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart,

id. at 216 (emphasis added), we held that

a litigant should not have his right to a new trial foreclosed without having had the benefit of the trial court’s judgment on the question,

id. at 217 (emphasis added). We clearly indicated that the result would have been the same had the verdict loser, as had the respondent here, unsuccessfully moved for a judgment n.o.v. in the trial court, for, in that case, likewise, the verdict winner would have had to wait until the Court of Appeals deprived him of his verdict before presenting his grounds for a new trial. We specifically rejected a suggestion -- today accepted by the Court -- that the verdict winner should have to claim his right to a new trial in the Court of Appeals or lose it. Id. at 218.

Following Cone, we emphasized and reemphasized in Globe Liquor Co. v. San Roman, 332 U.S. 571, that the reason why courts of appeals are without power to dismiss cases in situations like this is that the power to determine this issue is vested exclusively in the judge who tried the case. And again, in Weade v. Dichmann, Wright & Pugh, Inc., 337 U.S. 801, even where -- as in this case -- a timely motion for judgment n.o.v. had been made, the Court affirmed the Court of Appeals’ holding that the verdict could not stand, but, relying on Cone and Globe Liquor, modified its judgment to provide the trial judge with an opportunity to decide whether the verdict winner was entitled to a new trial. Id. at 809 and n. 8. See also Johnson v. New York, N.H. & H. R. Co., 344 U.S. 48; Fountain v. Filson, 336 U.S. 681.

This issue of whether a new trial is justified after a verdict is set aside either by a trial or an appellate court is a new issue which it was not necessary to decide in the original trial. It is a factual issue, and that the trial court is the more appropriate tribunal to determine it has been almost universally accepted by both federal and state courts throughout the years. There are many reasons for this. Appellate tribunals are not equipped to try factual issues, as trial courts are. A trial judge who has heard the evidence in the original case has a vast store of information and knowledge about it that the appellate court cannot get from a cold, printed record. Thus, as we said in Cone, the trial judge can base the broad discretion granted him in determining factual issues of a new trial on his own knowledge of the evidence and the issues "in a perspective peculiarly available to him alone." 330 U.S. at 216. The special suitability of having a trial judge decide the issue of a new trial in cases like this is emphasized by a long and unbroken line of decisions of this Court holding that the exercise of discretion by trial judges in granting or refusing new trials on factual grounds is practically unreviewable by appellate courts. See, e.g., Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481-482; cited with approval in Montgomery Ward & Co. v. Duncan, supra, at 253, n. 12.

Today’s decision is out of harmony with all the cases referred to above. The Court’s opinion attempts to justify its grant of power to appellate courts by pointing to instances in which those courts, and even assertedly this Court, have utilized this power in the past. The Court cites Pence v. United States, 316 U.S. 332, and New York, N.H. & H. R. Co. v. Henagan, 364 U.S. 441, as such instances. In Pence, the Court of Appeals reversed the trial court’s refusal to grant judgment n.o.v. and remanded for further consistent proceedings. We affirmed without the slightest indication that we felt the Court of Appeals’ mandate deprived the verdict winner of the chance to move for a new trial on remand. Neither did the Court indicate that this would be the effect of its mandate in Henagan where it remanded the case to the District Court to enter judgment n.o.v. for the verdict loser. And the same can be said of almost every other post-Cone court of appeals decision cited by the Court in note 5. Cf. Johnson v. New York, N.H. & H. R. Co., supra at 54, n. 3.

The Court also attempts to justify its new grant of power to appellate judges by a strained process of.reasoning. First, the Court suggests that the power of an appellate court to dismiss a case after setting aside a litigant’s verdict can be derived from 28 U.S.C. § 2106. This idea, of course, was first suggested by a dissent inJohnson v. New York, N.H. & H. R. Co., supra, at 65, which argued that, because of § 2106, "the discretion now rests with the Court of Appeals to grant a new trial or to direct a verdict according to law on the record already made." This contention, however, was not deemed worthy of argument or comment either by the Court in its opinion or by others who dissented in the Johnson case. Section 2106 merely deals with the general power of appellate courts, and indicates no congressional purpose to overcome the longstanding and established practice, recognized by this Court’s decisions and Rule 50, that the discretion to decide whether a new trial should be granted when the appellate court finds a gap in the supporting evidence rests with the trial judge, and not with the appellate court. It begs the question to argue that it is appropriate for an appellate court in such circumstances to order a dismissal merely because § 2106 provides that a court of appeals may direct the entry of an "appropriate judgment."

The Court further purports to derive this power from the provisions of Rule 50(c) and (d). The Court notes that, under Rule 50(c)(1), where the trial judge grants a judgment n.o.v. and either grants or denies the conditional motion for new trial, an appellate court, in reversing the judgment n.o.v., has "the power to grant or to deny a new trial in appropriate cases." But, as the Court fails to recognize, the crucial prerequisite to the exercise of this appellate power is a ruling in the first instance, as required in Cone, by the trial court on the motion for new trial. Here, that crucial prerequisite is missing.

The Court then proceeds to find Rule 50(c)(2) inapplicable on its face to a situation where the trial court denies a judgment n.o.v. but an appellate court orders that one be entered. In doing so, the Court ignores the purpose of Rule 50(c)(2). The Rules Committee explained this provision as follows:

Subdivision (c)(2) is a reminder that the verdict-winner is entitled, even after entry of judgment n.o.v. against him, to move for a new trial in the usual course.

31 F.R.D. 646. The rule does not remotely indicate that the verdict winner loses this right to move for a new trial if the trial court’s entry of judgment n.o.v. against him is on direction by the appellate court, rather than on its own initiative. Sections (c) and (d) were added to Rule 50 in 1963, after all the cases discussed above had been decided. As the Notes of the Rules Committee indicate, these amendments were made to implement those decisions which had emphasized the importance of having trial judges initially determine the factual issue of whether a new trial is justified in cases where judgment n.o.v. has been entered against the verdict winner, either by the trial or appellate court. The Committee at no place hinted that the amendments were meant to change the practice established by those cases, and, to the contrary, it specifically stated that, "The amendments do not alter the effects of a jury verdict or the scope of appellate review." 31 F.R.D. 645. (Emphasis added.)

Certainly this is true of Rule 50(d). This section provides that the verdict winner, who prevailed on the motion for judgment n.o.v.,

may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict

(emphasis added), and that

nothing in this rule precludes it [the appellate court] from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

Because the Court finds that the rule "is permissive in the nature of its direction to the court of appeals," it concludes "there is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of judgment n.o.v. in appropriate cases." The Court entirely overlooks the fact that the rule is likewise permissive in the nature of its direction to the verdict winner as appellee: it provides that the verdict winner "may" ask the Court of Appeals for a new trial; it does not provide that he must do so in order to protect his right to a new trial. Contrary to the Court, I think the express failure of Rule 50(d) to give the appellate court power to order a case dismissed indicates a clear intention to deny it any such power. The practice now permitted by Rule 50(d) was first embodied in the Notes of the Rules Committee to the proposed, but unadopted, amendments of 1946. The Notes suggested that a verdict winner could, as appellee, assign grounds for a new trial in the event the appellate court set aside his verdict. In Cone, however, we expressly rejected the contention that the verdict winner’s failure, as appellee, to assign grounds for a new trial in the appellate court gave that court the power to deny him a new trial. Cone v. West Virginia Pulp & Paper Co., supra, at 218 and n. 6. This rejection was extensively discussed by the commentators, most of whom concluded that, under Cone, the verdict winner should be allowed a chance to present his motion for new trial at the trial court level.{3} Finally, when Rule 50(d) was adopted, there was not the slightest indication that it was intended to adopt the practice that we found objectionable in Cone. In fact, it was carefully worded to avoid giving the appellate court any power to deny a new trial. I do not believe this omission unintentional, for the language of Rule 50(c)(1), adopted at the same time, does purport to give the appellate court this power when it reverses a judgment n.o.v. and the trial court has already denied the verdict loser’s conditional motion for new trial. It does so clearly by providing that "subsequent proceedings shall be in accordance with the order of the appellate court."

In short, today’s decision flies in the teeth of Rule 50(c)(2), and our cases which that rule was intended to implement, by giving the Court of Appeals the power, clearly withheld by Rule 50(d), to substitute its judgment for the trial court’s, and then decide that justice requires no new trial.


Even were I to agree with the Court that courts of appeals have the power to deny a verdict winner a new trial, I could not agree to the affirmance of such a denial here. Here, so far as appears from the record, the Court of Appeals never even gave a thought to the question of whether petitioner was entitled to a new trial, but simply required that the district judge dismiss the lawsuit as though it were an automatic necessity. And petitioner, in seeking to support her verdict without directing the Court of Appeals’ attention to any grounds for a new trial, had every right to rely on our past cases which plainly told her that she was entitled to make her motion for a new trial to the trial judge, who is far more able to determine whether justice requires a new trial. While, in one breath, the Court says that it "will not assume that the court [of appeals] ignored its duty" to "consider the new trial question," in another breath, it notes that "[t]his matter was not raised in the Court of Appeals." And because petitioner failed to present grounds for a new trial to the Court of Appeals, the Court, while recognizing that she here presents grounds for a new trial which might require decision by the trial court, refuses to consider these grounds.

In refusing to consider petitioner’s grounds for a new trial, the Court completely ignores what was done in Weade v. Dichmann, Wright & Pugh, Inc., supra. There, we ordered the case remanded to the trial court to pass on petitioner’s motion for new trial because petitioner suggested to this Court that there was an alternative theory presented by the complaint and evidence. However, nowhere in the record in that case was it indicated that petitioner had argued this alternative theory in the Court of Appeals, and nothing in our opinion indicates any such requirement. The Court correctly summarizes Weade as holding that "an appellate court may not order judgment n.o.v. where . . . the record reveals a new trial issue which has not been resolved." (Emphasis added.) I think the record here reveals such an issue, and that, at the very least, petitioner should now be given a chance to argue that issue to the Court of Appeals.

The record here clearly reveals that there were gaps in petitioner’s case which she might, if given a chance, fill upon a new trial. First, only one of the three eyewitnesses to Neely’s fall and only one of the carpenters who worked on the platform were called as witnesses. Second, the trial court excluded testimony by all the witnesses as to their opinions of the adequacy of the platform. Third, several of petitioner’s very relevant photographs of the platform were excluded by the trial judge. From such circumstances as these, the trial judge might properly have concluded that petitioner was entitled to a new trial to fill the gaps in her case. It is particularly pertinent in this respect that the Court of Appeals itself said:

It may, of course, be conceded that the platform might possibly have had something to do with his fall, but there is nothing in the record to show what it was.

344 F.2d at 486. It surely cannot be dismissed as idle conjecture to think that petitioner could, if given a chance, introduce sufficient evidence to prove to the most exacting factfinder that the three-foot diagonal gap in the platform 130 feet above the ground had something to do with this fall and this death.

1. Heretofore, when faced with this issue, the Court has met it head-on, and thus avoided unnecessarily discussing the effect of Rule 50. See, e.g., Conway v. O’Brien, 312 U.S. 492; Berry v. United States, 312 U.S. 450; Halliday v. United States, 315 U.S. 94.

2. Petitioner’s "Question Presented," as set out in n. 3 of the Court’s opinion, is whether -- in addition to Rule 50(d) -- Rule 38(a) and the Seventh Amendment

preclude the Court of Appeals from instructing the trial court to dismiss an action wherein the trial court denied the defendant’s motions for new trial and for judgment notwithstanding the verdict and entered judgment for the plaintiff?

Certainly, if there were sufficient evidence to go to the jury, then Rule 38(a) and the Seventh Amendment preclude the Court of Appeals from directing a dismissal of petitioner’s case after she had obtained a jury verdict. To make it further clear that petitioner was challenging the Court of Appeals’ ruling on the sufficiency of the evidence, the petition for certiorari also states that

petitioner does not concede for one moment that the trial court and the jury were wrong and that the appellate court was right in interpreting the evidence as to proximate cause and negligence.

And our order granting certiorari, while directing counsel’s attention to the question of the Court of Appeals’ power to dismiss the case under Rule 50(c) and (d), stated that this question was "[i]n addition to all the questions presented by the petition." 382 U.S. 914.

3. See, e.g., Comment, 51 Nw.U.L.Rev. 397, 400-102 (1956); Note, 58 Col.L.Rev. 517, 524-525 (1958).


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Chicago: Black, "Black, J., Dissenting," Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967) in 386 U.S. 317 386 U.S. 331–386 U.S. 344. Original Sources, accessed June 29, 2022,

MLA: Black. "Black, J., Dissenting." Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967), in 386 U.S. 317, pp. 386 U.S. 331–386 U.S. 344. Original Sources. 29 Jun. 2022.

Harvard: Black, 'Black, J., Dissenting' in Neely v. Martin K. Eby Construction Co., Inc., 386 U.S. 317 (1967). cited in 1967, 386 U.S. 317, pp.386 U.S. 331–386 U.S. 344. Original Sources, retrieved 29 June 2022, from