UNITED STATES SUPREME COURT DECISIONS ON-LINE

Though questions of negligence and contributory negligence are ordinarily, questions of fact to be passed upon by a jury, yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case from the consideration of the jury and direct a verdict.

This case was commenced in the District Court of Clay County, Dakota Territory, on August 31, 1886, by the plaintiff in error, Biddena Elliott, widow of John Elliott, deceased, against the railway company, to recover damages on account of the death of John Elliott, alleged to have been caused by the negligence of the defendant and its employees.

The defendant answered, a trial was had at the September term, 1886, and the plaintiff recovered a verdict for $7,000. Judgment having been entered thereon, the defendant appealed to the supreme court of the territory, which reversed the judgment and remanded the case for a new trial. 5 Dak. 523.

The case was again tried, though apparently in the District Court of Minnehaha County at the April term, 1889, upon the same evidence that was presented on the first trial. A verdict was directed in favor of the defendant, and judgment entered thereon. Plaintiff appealed to the supreme court, which, on May 31, 1889, affirmed the judgment. Thereupon a writ of error was sued out from this Court. clubjuris

Page 150 U. S. 246