The Washington times., 1934-05-10


Power of the trial court in di-
recting a verdict on plaintiffs
opening statement is not properly
exercised if the opening state
ment leaves doubt as to the facts
or permits conflicting inferences.
The opening statement OF counsel
is ordinarily intended to do no
more than to inform the jury
in general way of the nature
of the action and defense so
that they may be better prepared
to understand the evidence.
Best, Adm. VS.. District OF Co
lumbia, No. ATT, on certlorarl to
the Court of Appeals Of the Dis
trict of Columbia. Mr.. Chief JUS
tice Hughes delivered the opinion
of the Court.
The controversy in the case
turned upon a difference of view
as to the inference to be drawn
from the opening statement.
Petitioners inteState, child
five years of age, while playing
on a wharf belonging to the Dis
trict of Columbia, fell through a
hole in the wharf and was
drowned. This action was fol
damages for the alleged negli
gence of the District. After a jury
had been impaneled, an opening
statement was made by plaintiff
counsel and thereupon the Court
on motion of the defendant anc
without taking testimony, di
rected verdict in defendants
favor upon the ground that ne
cause of action had been stated
The Court of Appeals sustained
the judgment and the certiorar
was taken.
Counsel had stated in his open
ing statement that the wharf wa!
without a fence and close to thu
street, with the side portion o.
the barrier down. The wharf wa
place where boats unloadec
sand which was taken out ant
used by the District and ther'
were 40 to 13 holes" in tn
J; wharf of varying sizes, one o
them being about three feet II
diameter. Children in the neigh
borhood were permitted to com
in and out at their leisure and a
the time of the accident ther
was no one there to keep tn
children away as the watchma1
who was stationed there arrived
some time after the accident.
Moving for a directed verdict, de
fendant's counsel argued ther
was a failure to show that tn
wharf could be seen from tn
public space" that "the child wa
attracted by the presence Of tn
wharf itself, or any article
thing which may have been upoI
the wharf," that "there was an
latent or hidden danger at tn
place" where the child wa
drowned; that there was ever
prior accident to children at Q
near this wharf," that "responC
ent invited or permitted petition
er's intestate or other children t
enter or play on it's wharf"
The higher court held there
no question to the power of tn
trial court to direct a verdict fc
= the defendant upon the openin
t statement of the plaintiffs coul
S sci where the statement estaI
: fishes that the plaintiff has n
l right to recover (Oscanyan v
e Arms Co., 103 U. S. 261, 263). E;
ercise of such power in a prope
case is desirable in saving tin
and expense of trials Giverpo'
Steamship VS.. Commissioners, II
: U. S. 33, 3D.
y Such power is not properly e;
: ercised, however, where the stat
t ment leaves doubt as to the fac
e or permits conflicting Inference
which the jury should be permi
ted to settle as matters of fac
(Richmond and Danville r. R. v
Powers, 149 U. S. 43, As; T. &
I Ry. VS.. Harvey, 228 U. S. 1892
g Cunning VS.. Cooley, 2S1 U.
j. 80, 94)
e Plaintiff is entitled to all ben
e fits of differences that may
e drawn from his counsePs openir
statement and for the court
o direct a verdict it is not enoue
e that the statement be lacking
e. definiteness, but it must clear
v appear, after resolving all doub
e in plaintiffs favor, that no eau
of action exists. (1llinoiS Pow