The result is that although he has granted the motion of
the defendant to dismiss and given the defendant what he wanted, he
has in reality penalized him, for the appellate court will reverse his
decision and the defendant have to pay all costs and stand the expense
of a new trial. The judge is in a quandary, which he may get out of in
two ways. One is to let the weak case of the plaintiff go to the jury
with the hope that they will see what a poor showing the plaintiff has
made and find a verdict for the defendant, in which event he will be
safe. But if the jury should make a mistake and find for the
plaintiff, then the judge has the intention of setting that verdict
aside, nullifying all the work of the jury, the witnesses, the
clients, and the lawyers, and ordering a new trial. This is rather a
weak-minded proceeding and shows the necessity of having a man in the
referee's chair who knows how to decide.
The second alternative for the judge is to reserve decision on the
motion and to let the jury go into the jury-room and worry about the
verdict for an hour or two, while the judge has the hidden intention
of perhaps deciding that they need not spend any time at all about the
matter.
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