this was so said because in the usual practice of the courts the judgment is entered before the lapse of the term, and the expression referred to was made in contemplation of the ordinary course, and so was an inexact statement of the rule as a universal one. In like manner a great number of decisions can be found wherein it is said that the power of the court over a judgment is at an end at the expiration of the term at which it was rendered. But this, while true as a general rule, has an exception, which is of frequent occurrence, when the cause remains open for some further action contemplated by the court. It is accordingly the established rule that a bill of exceptions may be settled at any time during the term at which the cause is tried, and thereafter, if judgment is deferred, until the end of the term during which it is rendered. And in Ward v. Cockran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195, it was held that an order extending time for settling the bill made during the pendency of the term at which the cause was tried to a date later than the end of that term of itself had the effect to prolong the control of the court over the cause and justify the settlement of the bill at a later date. This view of the subject makes it unnecessary to consider what effect the death of the attorney of record in December, after the time had been extended beyond the trial term, would have upon the validity of notices given to defendant's counsel. For it is not contended that the notice given in June. to appoint another attorney was invalid, or that the failure of the defendant to make such appointment was not sufficient to give ground for the action of the court in making the order on defendant to show cause, if the lapse of time had not deprived the court of power to make it.

The second question propounded by counsel is based upon the following facts: At the close of the production of evidence the counsel for the defendant preferred a request to the court that the jury be directed to return a verdict for that party. This request having been discussed by the counsel for the respective parties, the court was proceeding to give its opinion and instructions to the jury, and seemed to indicate, as plaintiff's counsel thought, a purpose to sustain the defendant's request for a positive direction in its favor. Thereupon the court permitted an interruption to allow the plaintiff's counsel to put on file certain requests to instruct the jury, and assured the counsel that he should have the benefit of them, and then, after giving its views at length, directed a verdict for defendant. The requests filed by plaintiff were eighteen in number, the first being as follows:

"(1) Under the pleadings and proofs, you are instructed that your verdict must be for the plaintiff, and the only question for you is as to the amount of damages."

The others related to particular matters of law and fact involved in the issue. The court did not comply with any of these requests. The plaintiff excepted to the ruling of the court upon defendant's motion for directing the verdict in its favor, and to the refusal of the court to give the instructions requested in his behalf. Coun

sel for defendant now urge that the request of each of the parties for a peremptory instruction by the court had the effect of a joint withdrawal of the issues of fact from the jury and a submission of them to the court for its determination, and that, the court having decided them in favor of the defendant, both parties are concluded by the finding; citing Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566, 39 L. Ed. 654. In that case there was no disputed question of fact, and it only remained for the court to state to the jury what the facts were, and what the law applicable to those facts was. And what the court there held in effect was that the court might state the facts as agreed, and not submit them to the jury. The language. of Mr. Justice White, taken apart from the case before the court, might justify the conclusion which the counsel draws from it. But it would seem that the decision cannot be regarded as furnishing a rule for cases where the evidence is conflicting, and where the party whose request is refused has coupled with his request other requests directed to particular aspects of the case, which repel the implication that the party had consented to a submission of the facts to the court. And in all the cases in which the case of Beuttell v. Magone has been cited in the appellate courts the conditions were the same; there was no disputed question of fact, and there were no special requests. Merwin v. Magone, 70 Fed. 776, 17 C. C. A. 361; Magone v. Origet, 70 Fed. 778, 17 C. C. A. 363; Bradley Timber Co. v. White, 121 Fed. 779, 58 C. C. A. 55; United States v. Bishop, 125 Fed. 181, 60 C. C. A. 123; Phoenix Ins. Co. v. Kerr, 129 Fed. 723, 64 C. C. A. 251, 66 L. R. A. 569.

In Beuttell v. Magone it is expressly stated that such request made by the respective parties is not the equivalent of a submission. of the case to the court without the intervention of a jury, within the intendment of Rev. St. §§ 649, 700 [U. S. Comp. St. 1901, pp. 525, 570]. The rule must therefore rest upon an implication of consent. Can any implication of consent be fairly drawn when, as here, the party couples his request for a peremptory instruction in his favor with further requests for instructions on the questions of law applicable to certain assumed facts which the jury may find? The presentation of requests for instructions in that form necessarily imports that the party expects that, if his first request is refused, the case will go to the jury, and that the court will give his other requests, or such of them as the court thinks are proper. For, if his request for a peremptory instruction is given, the others are futile. May not a party ask for a peremptory instruction in his favor without depriving himself, if the court thinks he is not entitled to it, of the right to have the jury pass upon the evidence and determine the issue? No valid reason is perceived why he should pay the penalty of losing a constitutional right by invoking the opinion of the court pro hac vice upon the preliminary question. It is, we believe, a common practice of the state and federal courts in Michigan and elsewhere in this circuit, when the party wishes to obtain the opinion of the court upon the question whether there is any evidence which could fairly be relied upon to defeat his claimed right, and, if the

opinion of the court should be that a question for the jury is presented, then to ask that appropriate instructions be given them to guide their deliberations, to present all his requests in a body, and the courts understand that to be the purpose, and conform to it. This was the course pursued here, and we do not think we should be justified in extending the rule stated in Beuttell v. Magone to a case thus differently circumstanced. In the case before us it is apparent that the judge did not suppose he was intrusted with the ultimate finding of the facts in the case. It appears that, before the plaintiff's requests were filed, the court had already indicated to the plaintiff's counsel that it was about to give a direction in favor of the defendant, and had already determined that the plaintiff was not entitled to recover. The court also stated that it would give to the plaintiff the benefit of his requests. But these could be of no benefit if the case was to be concluded by the judge's opinion on the facts. All this indicates that the court was co-operating with the plaintiff's counsel in his effort to save the questions presented by his requests.

Coming to the main question, the contention of the plaintiff was that, when the stand was moved in the afternoon, the sectionman, in order to detach parts 1 and 2 of the switch bar, pried up the end of the clip on part 2 so as to let the pin drop out of the hole in part 1; and that, when he had put the parts together again on the other side of the track, he neglected to bring the end of the clip back to its place. The defendant's contention was that the sectionman took the members of the bar apart and put them together again without disturbing the clip, and that the clip was afterwards raised by some unknown person out of malice against the railroad company, or that in some other unknown way the clip was raised without any fault of defendant. It is not claimed that the plaintiff was at fault, or disputed that, as matter of law, a presumption of negligence against the defendant was raised by proof of the accident, and the absence of fault on the part of the plaintiff. That such is the law is well settled. If the testimony of the defendant's sectionman and his helpers were not contradicted and were given full credit, it might, and probably should, be found that the defendant was exculpated. But their evidence was subject to some criticism, and not altogether consistent either in itself or with the uncontroverted facts; and, contradicted as it was by other unimpeached witnesses upon vital facts, the determination of such facts depended upon the credibility of the witnesses, and nothing is more clearly settled than that this is the province of the jury. The court below, in its opinion given before charging the jury, justifies the proposed instruction upon the ground that several unimpeached witnesses testified that when the switch was left that afternoon the clip was down in its proper position, and that this fact, thus proved, exonerated the defendant from any duty of further showing how the accident occurred. But the learned judge stated that it was conceded that the clip was sufficient for its purpose, and that there could be no accident attributable to the switch so long as the clip remained in its proper position. The undisputed facts remain

that the switch had, up to the time when it was changed, performed its duty and was then in proper condition, and that within a few hours thereafter it was found with the clip raised and the parts of the bar separated. The disaster coming so soon, naturally the attention of the inquirer is directed to the fact that the switch bar was opened the day before. If it was closed again, how did it get reopened? No one is charged with a malicious motive which would prompt to such a deed. Counsel for defendant exclaimed with much warmth against the imputation that the employés of the company had for the purposes of the suit substituted another switch bar for the genuine (a grossly scandalous proceeding, it is true, if the fact was so), and claimed that the presumption against such conduct was so strong that the evidence of the plaintiff's witnesses in that regard ought not to be credited. But the jury might well have thought that a still stronger presumption existed against the imputation that some other person or persons, with no apparent motive at all, might have done a deed which, if its purpose should be effected, would directly imperil the lives and safety of innocent persons. The circumstances of the case were such that the moral probabilities springing from established facts had a very potent influence in leading the mind to the truth. This species of evidence is often more convincing than the testimony of witnesses. In his opinion the learned judge said:

"I state candidly that the undefaceable impression left upon my mind by this testimony is that the explanation offered by the railway company here in this case shows such a correct demonstration to my mind of immunity from liability that if the case were submitted to you for your decision upon the facts, and you should find contrary to the result which I will announce, I should deem it my duty, in the exercise of sound judicial discretion, to set that verdict aside. That being the duty forced upon me by the rules of law, I am not only authorized, but required to give to the facts proven judicially the same force and effect as if your verdict should be for the defendant."

If, indeed, the case for the plaintiff was so feeble that it would be the imperative duty of the court to set aside a verdict based upon. it, we should have no doubt that the court might end the case by a peremptory instruction to find for the defendant. The court might, upon motion, in the exercise of "sound judicial discretion" upon its view that the clear preponderance of the evidence was with the defendant, set aside a verdict for the plaintiff and order a new trial. But the court cannot balance the evidence when it is conflicting, and then compel the jury to find a verdict according to the court's estimate of the relative weight of the evidence for the respective parties. Such a doctrine would efface the line of demarcation between the provinces of the court and jury.

Certain expressions used by the Justices in delivering the opinion of the Supreme Court are often laid hold of by counsel in cases in the federal courts as authority for some such doctrine as that of the court below. Indeed, in this court, and we have no doubt the same thing is true in the experience of all the federal appellate courts, come frequent repetitions of cases where opposite counsel contend for distinctly opposite doctrines in respect to the authority,

of the trial judge to take the determination of questions of fact from the jury, and in support of their respective contentions an equally formidable list of decisions is cited; on the one hand, where language has been used almost, if not quite, as broad as that of the trial judge in the present instance; and, on the other hand, where that court has said that if there be any substantial testimony bearing upon an issue of fact to which the jury might, in the proper exercise of their rightful authority, give credit, the court is not justi fied in withdrawing the issue from the jury and deciding it upon its own estimate of the preponderance of the evidence. Undoubtly, it is distinctly settled that a mere scintilla, a spark, which arrests attention, and then from mere lack of vitality fades away, is not sufficient to warrant the submission of an issue of fact to a jury, when the scintilla is all that is developed by the party having the burden of proof. Such a showing has no substance, has not the quality of proof, and the judge may lawfully say so to the jury. And it must be admitted that the Supreme Court has gone a step farther than this, and assigned to the province of the court the right to direct the jury in those cases standing between those where there is a mere scintilla and those where there is substantial evidence, standing in a borderland, so to speak, where the evidence is so vague, indefinite, or inconsequential as not to furnish a reasonable foundation on which a verdict could rest. There are numerous cases in the Supreme Court where it is said that the judge may direct the verdict when the evidence is of such conclusive character that the court, "in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it." In the case supposed it would undoubtedly be the imperative duty of the court to set the verdict aside, and the refusal to do so would be a plain denial of justice. The judge is bound to see that each party is accorded legal justice, which could not be if one party were to obtain a judgment without proving his cause of action, or the defendant allowed to defeat a proven cause of action without establishing a defense. In other cases it is said the condition contemplated in which the judge may direct the verdict is when, "in his deliberate opinion, there is no excuse for a verdict save in favor of one party."

Greenleaf, in the first volume of his work on Evidence, § 49, with his customary precision thus states the fundamental rules of the trial of issues of fact:

"In trials of fact, without the aid of a jury, the question of the admissibility of evidence, strictly speaking, can seldom be raised; since, whatever be the ground of objection, the evidence objected to must of necessity be read or heard by the judge, in order to determine its character and value. In such cases, the only question, in effect, is upon the sufficiency and weight of the evidence. But in trials by jury, it is the province of the presiding judge to determine all questions on the admissibility of evidence to the jury, as well as to instruct them in the rules of law by which it is be weighed. Whether there be any evidence or not, is a question for the judge; whether it is sufficient evidence is a question for the jury."

In strict harmony with this statement is the language of Mr. Justice Clifford in Improvement Company v. Munson, 14 Wall. 442,