dissenting.
If the Court’s opinion in this case merely disposed of a particular litigation by finding error in a decision of the *55Court of Appeals that a judgment be entered for the defendant in a negligence suit, an expression of dissent, let alone a dissenting opinion, would not be justified. If that were all there were to it, neither would the Court have been justified in granting the petition for certiorari. The same considerations which made the case one of general importance for review here make it appropriate to spell out the grounds of dissent.
Not the least important business of this Court is to guide the lower courts and the Bar in the effective and economical conduct of litigation. That is what is involved in this ease. The immediate issue is the construction of one of the important Rules of Civil Procedure. That construction in turn depends upon our basic attitude toward those Rules — whether we take their force to lie in their very words, treating them as talismanic formulas, or whether we believe they are to be applied as rational *56instruments for doing justice between man and man in cases coming before the federal courts.
Our concern is with Rule 50 (b) of the Federal Rules of Civil Procedure.1 The Rules became effective on September 16, 1938. Two years later, in Montgomery Ward & Co. v. Duncan, 311 U. S. 243, this Court was called upon to determine the appropriate procedure under Rule 50 (b). To do so, the Court had to consider the experience that led to the promulgation of the Rule. Its aim was to speed litigation without prejudicing the legitimate interests of litigants; to see to it that full and fair consideration is given to the issues litigants raise but that litigation does not become a socially wasteful game. The unanimous opinion of the Court in the Montgomery Ward case gave this guiding direction: “. . . the courts should so administer the rule as to accomplish all that is permissible under its terms.” 311 U. S., at 253. This attitude was made specific by the statement that if the trial judge rules, as he properly *57should, on alternative motions for judgment n. o. v. and for a new trial, and denies them both, the appellate court may reverse the former action and direct the entry of judgment n. o. v. 311 U. S., at 254.
Subsequent to Montgomery Ward & Co. v. Duncan, supra, three cases came here in which we reversed because Courts of Appeals disregarded the procedure outlined in that case in one significant respect. The Courts of Appeals directed the entry of judgments n. o. v. although no motions for such judgments had been made in the trial courts. Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212; Globe Liquor Co. v. San Roman, 332 U. S. 571; Fountain v. Filson, 336 U. S. 681. Our decisions do not suggest, however, that the party in whose favor a Court of Appeals directs a judgment n. o. v. is required to use a ritualistic formula in the District Court. The only relevant inquiry in this case, therefore, is whether the fair meaning of the proceedings after a verdict was rendered in fact constituted disposition of a motion to enter judgment n. o. v. This is so unless Rule 50 (b) commands that after the reception of a verdict a party must not only “move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict,” but must do so by a particular form of words. The Rule does not require this. Nothing in the Rule, either by its terms or its origin, requires some abracadabra of obedience to it.
A comparison of the facts in the Cone, Globe and Fountain cases with those in this case leaves no doubt that this case has nothing in common with Cone, Globe and Fountain. A tabular analysis of the procedural facts in all four cases is appended, post, p. 63. There were no motions n. o. v. in Cone, Globe and Fountain, and the failure to make them resulted in a prejudice to the losing *58parties in the Courts of Appeals in those three cases which is wholly wanting here.2
In each of the three earlier cases the decision of the Court of Appeals either applied to the facts a legal theory other than the one on which the parties proceeded in the trial court, or for the first time assigned decisive importance to the choice by the losing party of a legal theory on which to claim or resist recovery. Cone was tried on the assumption that proof of constructive possession would sustain the cause of action; the Court of Appeals definitively disposed of the litigation by holding that actual possession must be proved. In Globe the plaintiff secured a verdict on the basis of an express warranty in a sale; the Court of Appeals held that he had failed in this and directed the entry of a judgment for the seller, even though on a new trial, which alone was what the seller had asked, it would have been open for the buyer, with the aid of additional evidence, to succeed on proof of an implied warranty. In Fountain the plaintiff sued to have himself declared the beneficiary of a resulting *59trust in certain realty. While the Court of Appeals agreed with the District Court that New Jersey law precluded the imposition of such a resulting trust, it directed the District Court to enter a personal money judgment for the plaintiff. In all three cases we held that the District Court never had opportunity to exercise the discretion which would have been open to it had the grounds on which the litigation went off in the Court of Appeals been relied on before the District Court in an appropriate motion.
In this case there was no such deviation from the trial issues. The case went to the jury on the issues of defendant’s negligence in departing from an alleged common custom, and of causation. These issues were duly pressed before the trial judge after verdict. The case went against the petitioner in the Court of Appeals on one of them. In contrast to the situation in the other three cases no possible claim of surprise can here find nourishment. The Cone, Globe and Fountain cases, being decisively different from this case, cannot govern it.
Let me set out, side by side, so much as is pertinent in the motion made after the verdict in the Montgomery Ward case and the motion made in this case.
Montgomery Ward Johnson
Comes the defendant, Montgomery Ward & Company, and files its motion praying that the jury’s verdict herein and the judgment rendered and entered thereon be set aside and judgment entered herein for the defendant notwithstanding the verdict, and its motion for a new trial in the alternative, and as grounds therefor states: On behalf of the defendant, The New York, New Haven & Hartford Railroad, I move to set aside the verdict on the ground
*60A. . . . Motion ... to enter judgment ....
1. That the verdict is contrary to the law. that it is contrary to the law
2. That the verdict is contrary to the evidence. and contrary to the evidence
3. That the verdict is contrary to the law and evidence.
8. That the defendant has failed to prove by a preponderance of the evidence .... and contrary to the weight of the evidence
B. . . . motion for a new trial: [Specifications 1-8 same as above.]
9. That the damages found by the jury and the verdict based thereon were excessive.3 and excessive.
The difference between the two motions is nil. One was written and formally labelled and detailed. While the other was oral, it was cast in form familiar to New York practitioners and its meaning was no less clear. The District Judge’s action demonstrates this. But under the Court’s holding it is no longer sufficient to move for a directed verdict and then, within the time provided by the Rule, ask the trial judge either to grant judgment or a new trial. The Court so holds even though the trial judge already has expressly stated he has reserved for his consideration at that time (after verdict) the very issue which a motion for judgment n. o. v. would repeat. The *61obvious, which is left unsaid in colloquies between counsel and the court, must now be spoken. The redundant, omitted out of respect for a judge’s intelligence and professional competence, must always be spelled out. The parties must be sure to indulge the ancient weakness of the law for stylized repetition, and it is necessary that the judge answer the same question twice before his answer is to be recognized. In this way do we conduce “to the efficiency and the economy, of the administration of justice.” Federal Rules of Civil Procedure, Proceedings of the Institute at Washington, D. C. and of the Symposium in New York City, 87 (1938) (Chesnut, J.).
If on that fateful Friday the 13th, in April, 1951, sometime shortly after 10:30 in the morning when the jury’s verdict was opened, the defendant had prefaced his argument by saying, “Your Honor, before addressing myself to my pending motion for directed verdict, on which your Honor reserved decision, and which of course now necessarily is a motion for judgment n. o. v., I first want to renew that motion,” he would have avoided today’s decision against him, although he would not have added one jot of information to that of counsel for the plaintiff or of the judge regarding the issues before the court for decision. To require this is to make Rule 50 (b) read (added language in italics):
“Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside. Such a motion will be treated as a motion to have judgment entered in accordance with his motion for a directed verdict if he repeats the motion for directed verdict or states to the court that he now makes a ‘motion for judgment notwithstanding the verdict.’ ”
*62The Federal Rules of Civil Procedure are the product of the progress of centuries from the medieval court-room contest — a thinly disguised version of trial by combat— to modern litigation. “Procedure is the means; full, equal and exact enforcement of substantive law is the end.” Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules; with it in mind we construed Rule 50 (b) in the Montgomery Ward case.
It has been said of the great Baron Parke: “His fault was an almost superstitious reverence for the dark technicalities of special pleading, and the reforms introduced by the Common Law Procedure Acts of 1854 and 1855 occasioned his resignation.” (Sir James Parke, 15 D. N. B. 226.)
Baron Parke despaired prematurely. If he had waited another hundred years this Court today would have vindicated his belief that judges must be imprisoned in technicalities of their own devising, that obedience to lifeless formality is the way to justice.
[For dissenting opinion of Mr. Justice Minton, see post, p. 65.]*63
“(b) ReservatioN of Decision on Motion. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.”
The post-verdict motions in Cone and Globe (there was none in Fountain) specifically prayed for a new trial, and the grounds they recited went wholly to the issue of whether or not a new trial would be proper. The Cone motion relied on newly discovered evidence. Moreover, it was much too late to pray for judgment n. o. v. under Rule 50 (b). In Globe the motion claimed error in rulings on evidence and in taking the case from the jury. The motion in our case, timely under Rule 50 (b), was “to set aside the verdict” on grounds which supported both judgment n. o. v. and the grant of a new trial. Having heard argument and requested briefs and the trial transcript, the judge held that the evidence permitted recovery. It could not do so, of course, if it were insufficient in law. Nor should the fact be forgotten that the judge was dealing with arguments which had been presented to him before on a motion for a directed verdict, as to which he had reserved decision. Motions for directed verdict had been made by defendants in Cone and Globe as well, but they had been expressly denied before the verdict.
The specifications which I do not quote do not add materially to the motion for judgment n. o. v. in the Montgomery Ward case.