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2 U. Cin. L. Rev. 450 (1928)


The language quoted from Jacob Laub Baking Company v. Middleton, in which all concurred, will undoubtedly tend to increase the number of directed verdicts and appears to be, in effect, a repudiation of the scintilla rule. The problem, therefore, is to devise a formula which, while meeting the objections to the scintilla rule, will put the judge on notice that a greater degree of assurance is required to direct a verdict than to set one aside. Holding that the conclusion is against.the plaintiff beyond a reasonable doubt is not inconsistent with recognizing that there is "some evidence, however slight". The proposed test is not inconsistent with the most recent expressions of the supreme court and accords with actual judicial practice except in those cases in which the judge is led, either through scrupulosity or a desire to avoid responsibility, to surrender to the jury the judicial function.



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