Gagnier v. City of Fargo ( 1903 )

ON REHEARING.

(October 29, 1903.)

On the reargument appellant’s counsel urged that the plaintiff was guilty of contributory negligence as a matter of law, and that it was nob necessary for appellant to particularly specify wherein the evidence was insufficient to sustain the verdict, inasmuch as. the evidence, considered as a whole, failed to show that the plaintiff was in the exercise of ordinary care in riding over'the walk in question under the circumstances disclosed by the evidence. This contention cannot be upheld. As stated before in the opinion, the insufficiency of the evidence to justify the verdict was not particularly pointed out or specified on the motion for a new trial. This not having been specified, the evidence cannot be considered, and the statement alleging that it was insufficient must be disregarded. If insufficient to justify the verdict in any case, the insufficiency must be pointed out and specified, or the trial and appellate courts must disregard the specification. The language of the statute does not admit of excepted cases, but applies to all cases. The insufficiency of the evidence must be specified on the motion for a new trial, or its insufficiency raised by a motion for a directed verdict,, before the verdict can be set aside on appeal as based on insufficient evidence. Hence the question is not before us whether the plaintiff was guilty of contributor}'- negligence as a matter of law; nor is the question before us whether the evidence was insufficient to sustain the verdict. Counsel cite many cases holding that an unqualified misdirection in the instructions is ground for a new trial. The contention is not disputed, but it has no application to this case. The cases cited do not hold that an omission to fully state the law bearing on the ca'se in one instruction is prejudicial error, providing the omission is fully and clearly supplied in the other instructions given. This is not a case of contradictory instructions. The charge as a whole is not contradictory, but is a correct statement of the law applicable' to the case, so far as excepted to.

Finally, it is urged on the reargument that the specification that “the verdict is against the law of the case” is a sufficient specification to warrant this court in setting aside the verdict as not based on sufficient evidence. The specification “against the law,” as generally applied in code states, means that the verdict is -in disregard of the instruction of the court. The case of Sweeney v. C. P. R. Co., 57 Cal. 15, is especially relied on by counsel to support his contention. In that case, the record is silent as to what specifications were made as grounds for a new trial. The trial court granted a new trial on the ground that the verdict was against the law as laid down in the instructions, and also contrary to the uncontradicted evidence. It is not authority for holding that a verdict is “against law” as based on insufficient evidence when no particular specification of the insufficiency of the evidence is made on the motion for a new trial. In Brumagin v. Bradshaw, 39 Cal. 24, this language is used in disposing of a similar specification of error: “It is not enough to aver that the verdict is against the 'law, and then offer to support the averment by showing that the verdict is not supported by -the evidence, and is for that reason ‘against law.’ If such a course of proceeding were tolerated, all the other specific grounds for new trial enumerated in the statute might, for the same reason, be condensed into one general ground.that ‘the verdict is against law,’ for in that general sense it would be ‘against law’ if there was any valid reason whatsoever for a new trial.” As bearing on the meaning of “against law” in, specifications of error, see also, Declez v. Save, 71 Cal. 552, 12 Pac. 722; Valerius v. Richard, 57 Minn. 443, 59 N. W. 534. The specification that the verdict was “against the law of the case,” when considered with reference to the instruction and the evidence does not warrant setting aside the verdict. Before a specification that the verdict is “against law” can be relied on for a new trial based on a consideration of the evidence, it must appear that the verdict was rendered in disregard of the instructions. This is not shown in this case. We find no reason for departing from the conclusions formerly announced by this court.

(96 N. W. Rep. 841.)

The judgment is affirmed.

All concur.