Stephen A. Jipp, Appellant, v. Burlington Northern Railroad Company, a Corporation, Appellee, 738 F.2d 925 (8th Cir. 1984)

Stephen A. Jipp, an employee of the Burlington Northern Railroad Company (Company), commenced an action against the Company for injuries allegedly sustained in the course of his employment. He contended that the Company was negligent in that it permitted hydraulic oil to leak from a trackmobile which it had failed to repair. The oil allegedly leaked onto a railroad tie. Jipp claimed he slipped on the oiled tie and injured his back. The Company denied Jipp's claim. The issue was submitted to a jury. The jury returned a verdict for the Company.

Jipp filed a timely motion for a new trial alleging that the verdict of the jury was contrary to the weight of the evidence. The district court denied the motion and Jipp appeals. We affirm.

An appeal from an order denying a new trial is generally not appealable as such, but most reviewing courts now treat such an appeal as being from the underlying judgment when both parties address the merits of that judgment. In re W.F.A. Hurley, Inc., 612 F.2d 392, 394 (8th Cir. 1980); Hennessy v. Schmidt, 583 F.2d 302, 304-306 (7th Cir. 1978). We find Jipp's appeal, however, to have little merit. The jury specifically found that the Company was not negligent and there is more than sufficient evidence in the record to support this finding.

Affirmed.