# The Boeing Company v. Daniel C. Shipman

> Court of Appeals for the Fifth Circuit · April 7, 1969 · 411 F.2d 365

URL: https://www.frixlaw.com/law-library/cases/9454598

## Case

- **Full name:** The BOEING COMPANY, Appellant, v. Daniel C. SHIPMAN, Appellee
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 7, 1969
- **Citations:** 411 F.2d 365; 1969 U.S. App. LEXIS 12944
- **Precedential status:** Published
- **Opinion:** Concurrence by Thornberry
- **Judges:** Rives, Brown, Wisdom, Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth, Godbold, Dyer, Simpson, Morgan
- **Cited by:** 2,253 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Charles D. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (1997).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454598

## How later opinions describe it (automated extraction)

- stating that “the facts and inferences [must] point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict”
- stating that it is the function of the jury to weigh conflicting evidence and inferences and determine the credibility to be accorded to the witnesses
- stating that "it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh competing evidence and inferences”
- explaining the standard to be applied in determining whether the court should enter judgment on motions for directed verdict or for judgment notwithstanding the verdict

## Opinion text

THORNBERRY, Circuit Judge, with whom GOLDBERG, Circuit Judge,
joins (concurring specially):
Having participated in the decision of Planters and written an opinion for the Court in Helene Curtis [Industries, Inc.] v. Pruitt, 5th Cir. 1967, 385 F.2d 841 , which also involved sufficiency of the evidence, I think it appropriate for me to enter a separate opinion expressing my views. As for Part I of the majority opinion, I agree that federal rather than state law controls. As for the question of whether the standard for sufficiency of evidence in FELA cases is applicable to non-FELA cases, I am not altogether persuaded by Part II of the majority opinion. While the railroad defendant in an áction under the FELA is held to a higher standard of care than the defendant in a conventional diversity personal injury action, thus making a directed verdict against the injured plaintiff more unlikely in FELA cases, I am not convinced that a different test for sufficiency follows from this difference in the controlling substantive law. Largely for reasons given by Judge Tut-tle in Planters and by Judge Rives in his dissent in this case, I adhere to my concurrence in that part of Planters which holds that the federal test for sufficiency should be the same in all federal cases. On the other hand, I believe that in the way they characterize the FELA standard Planters and Helene Curtis may place undue emphasis on Wilkerson v. McCarthy, thereby implying a more restricted role for the judiciary than is truly required by Supreme Court deci *405 sions in FELA cases. I concur in the overruling of Planters to the extent that we there held that on motions for directed verdict and judgment notwithstanding the verdict the court should consider only the evidence and inferences which support the non-mover’s case.
I concur in Part III of the majority opinion. I read the standard that has been formulated to mean that in ruling on motions for directed verdict and judgment nov the court should consider all the evidence, but in the light and with all reasonable inferences most favorable to the opposing party. I interpret this to mean that the court should consider the evidence and inferences most favorable to the opposing party and the uncontradicted evidence put on by the movant. See Starling v. Gulf Life Insurance Co., 5th Cir. 1967, 382 F.2d 701, 706 ; Dehydrating Process Co. v. A. O. Smith Corp., 1st Cir. 1961, 292 F.2d 653 , 656 fn. 6. Having done this, the court should grant the motion only if reasonable, fair-minded men could reach no conclusion other than the one urged by the movant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454598. Public record. Not legal advice.