Lawrence v. Bamberger Railroad Company ( 1955 )

HENRIOD, Justice

(concurring in part and dissenting in part).

I concur except as to that portion of the main opinion having to do with Rule 41 (b). I have no quarrel with the rule itself, but I do not believe that because it permits the trial judge to find the facts on motion for dismissal at the end of plaintiff’s case, that it imposes on this court any obligation to review the evidence any differently than we did where formerly a motion to dismiss was granted, i. e., in a light most favorable to plaintiff. To construe the rule as has the main opinion would lead to a situation where two cases factually identical could be determined differently if one were tried to the court and the other to a jury. I do not believe the rules, which every one seems to say are for the purpose of doing justice, would contemplate such an unusual and actually unfair result.