Shank

(after stating the facts as above). [1] 1. The order of the court granting defendant’s motion for a nonsuit is assigned as error, on the ground that the court had no power to grant a peremptory nonsuit against the will of the plaintiff. The rule now established in the federal courts is this; If the state law permits a nonsuit where the evidence, with all the inferences to be drawn therefrom, would not sustain a verdict for the plaintiff, the federal court may do likewise, under the provisions of section 914 of the Revised Statutes of the United States. U. S. Comp. St. 1901, p. 684. Central Transp. Co. v. Pullman’s Car Co., 139 U. S. 39, 40 , 11 Sup. Ct. 478, 35 L. Ed. 55 ; Meeham v. Valentine, 145 U. S. 618 , 12 Sup. Ct. 972, 36 L. Ed. 835 ; Coughran v. Bigelow, 164 U. S. 308 , 17 Sup. Ct. 117, 41 L. Ed. 442 ; Russo-Japanese Bank v. National Bank of Commerce, 187 Fed. 80, 86 , 109 C. C. A. 398 .

■ [2] Section 4354 of the Revised Codes of Idaho (1908) is as follows :

Such a motion admits the existence of every fact in favor of the plaintiff, which the evidence tends to prove, or which could be gathered from any reasonable view of the evidence. Later v. Haywood, 12 Idaho, 78 , 85…