The principle on which the judge passes on this motion to dismiss is,
that after all the case is in and all proof had, that on the proof and
evidence there is not enough on the part of the plaintiff from which
any reasonable man could ever find a verdict for him. The motion
differs from the one at the close of the plaintiff's case in that the
latter is based on there being no proof at all, while the one after
the case is entirely in is based on the theory that there is no
possibility of a verdict.
This sounds again like a metaphysical discussion, but is illustrative
of the futility of formal motions, so that actually the decision
depends upon the good plain common sense of the judge. The tendency is
that if the case has gone to the length of a full trial and there is
any question of fact involved, that the jury should determine the
question of fact and exercise their functions. It must be a poor weak
case of the plaintiff and evidently unsound, in which the judge or the
appellate court interferes.
Throughout the trial the little motions that occur bear the same
relation to the main issue as do the objections and exceptions.
"I tried to stop the car," says the motorman.
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