Safeway Stores v. Marvin Fannan, Marvin Fannan v. Safeway Stores

This case presents the question as to whether or not in a situation where a defendant has made a motion for a directed verdict, the Court may, on its own motion, grant a dismissal without prejudice. There is also presented the question as to whether or not the plaintiff’s proof was sufficient to entitle him to go to the jury.

Cross appeals are presented. Marvin Fannan, plaintiff below, appeals from an order of dismissal without prejudice under Rule 41(b), F.R.Civ.P. 28 U.S.C.A. Safeway Stores Inc., defendant below, appeals from the refusal of the trial court to grant its motion for a directed verdict under Rule 50, F.R.Civ.P.

Fannan, hereinafter called plaintiff, brought a tort action against Safeway Stores Incorporated, hereinafter called defendant, in the District Court, based on diversity of citizenship and a controversy exceeding $10,000.00.

The case was tried to a jury. The following facts appear from the record. On Monday morning, November 30, 1959, the plaintiff, accompanied by his sister, entered the store of the defendant. Plaintiff and his sister were the first customers to enter the store on the day of the accident.

Plaintiff, preceded by his sister, was walking…