PRIESTER et al. v. SOUTHERN RY. CO.
(Circuit Court of Appeals, Fourth Circuit.
June 15, 1925.)
No. 2344.
Appeal and error <©=31213 — Verdict properly directed, where testimony at second trial not materially different from that of first one.
, Where judgment for plaintiffs was reversed because evidence was not legally sufficient to support verdict for them, on retrial verdict was properly directed for defendant, where testimony did not differ materially from that of first trial.
In Error to the District Court of the Unitgd States for the Eastern District of South Carolina, at Charleston; Ernest P. Cochran, Judge.
Action at law by Mrs. M. A. Priester and her husband against the Southern Railway Company. Judgment for defendant, and plaintiffs bring error.
Affirmed.
T. M. Boulware, of Barnwell, S. C., and George Warren, of Hampton, S. C., for plaintiffs in error.
Prank G. Tompkins, of Columbia, S. C., and J. W. Manuel, of Hampton, S. C., for defendant in error.
Before WOODS, WADDILL, and ROSE, Circuit Judges.
ROSE, Circuit Judge.
This case has been here before. 289 F. 945. At that time, after full consideration, a judgment below for the plaintiffs was reversed, on the ground that they had offered no evidence legally sufficient to support a verdict in their favor. The ease was then remanded for a new trial. That has been now held, and under the direction of the learned District Judge a verdict was returned for the defendant. The- plaintiffs assign error.
It goes without saying that, if the testimony offered at the second trial did not differ in any material respect from that which was presented when the ease was first heard, the District Court had no choice other than to give the direction it did. Thompson v. Maxwell Land Grant & R. Co., 168 U. S. 456, 18 S. Ct. 121, 42 L. Ed. 539. We have carefully examined the present record, and fail to find any substantial distinction between the evidence in it and that which we considered some two years ago.
Affirmed.