To the extent that the majority opinion holds that the verdict is against the great preponderance of the evidence entitling plaintiff to a new trial, I am in full accord, but I must respectfully dissent from the direction remanding the case for trial on the issue of damages only.
Here neither party moved for a directed verdict during the trial. Had the verdict been in favor of plaintiff instead of defendants, we could not have granted judgment for defendants notwithstanding a verdict to the contrary, no motion for a directed verdict having been made. 3 Dunnell, Dig. Supp. § 5079; Stewart v. Menzel Co. 181 Minn. 347, 232 N.W. 522; Timmins v. Pfeifer, 180 Minn. 1, 230 N.W. 260; Flesher v. St. Paul Apt. House Co. 151 Minn. 146, 186 N.W. 232,26 A.L.R. 1246; Sayer Y. Harris Produce Co. 84 Minn. 216, 87 N.W. 617. Yet the majority proposes that we now entirely disregard the provisions of Minn. St. 1941, § 605.06 (Mason St. 1927, § 9495), and in effect direct judgment notwithstanding the verdict on the decisive issue of negligence, and this in favor of a party who made no motion for a directed verdict during the trial and who in her motion after verdict specifically asked for "a new trial of all of the issues," and nothing more. If, as stated in 3 Dunnell, Dig. Supp. § 5080, "a party is not entitled to a judgment under the statute unless, after verdict, he specifically moves for it," he should not be granted what is equivalent to a judgment in his favor without either a motion for directed verdict during the trial or a motion for judgment after its conclusion.
The limitations upon the powers of this court in the absence of a motion for directed verdict were recognized in Skolnick v. Gruesner, 196 Minn. 318, 325, 265 N.W. 44, 48, where Mr. Justice Stone said:
"The only thing which prevents our directing judgment notwithstanding the verdict is the absence from the record of any motion by defendant for a directed verdict. * * * The present record is barren of anything showing that plaintiff is entitled to recover. Notwithstanding, all we can do is to reverse the order under review insofar as it denies a new trial."
I concede that in a fact situation such as here presented, it was an abuse of discretion on the part of the trial court not to grant a new trial and submit the case to a new jury. Durst v. M. St. P. S. S. M. Ry. Co. 171 Minn. 164, 213 N.W. 738; Patzke v. M. St. L. R. Co. 109 Minn. 97, 123 N.W. 57; Peterson v. C. G. W. Ry. Co. 106 Minn. 245, 118 N.W. 1016; Martin v. Courtney, 75 Minn. 255, 77 N.W. 813; Messenger v. St. Paul City Ry. Co. 77 Minn. 34, 79 N.W. 583; Voge v. Penney, 74 Minn. 525, 77 N.W. 422. And, should a second trial produce no more substantial evidence in defense than that produced at the first trial, I feel it would be the duty of the trial court, at the close of proof and upon proper motion, to direct a verdict for the plaintiff, the amount thereof to be determined by the jury. But for this court now to adjudicate finally upon the issues of negligence and proximate cause by limiting the issues upon a retrial to that of damages only, and this without a motion by the plaintiff in the court below, is to disregard statute as well as precedent.
The practice of excluding from a new trial issues which have been determined satisfactorily on the first trial has frequently been followed by this court. Sleeter v. Progressive Assur. Co. 191 Minn. 108, 253 N.W. 531; Stolp v. Reiter,190 Minn. 382, 251 N.W. 903; Ertsgaard v. Bowen, 183 Minn. 339,237 N.W. 1; Hagstrom v. McDougall, 131 Minn. 389,155 N.W. 391. In each of these cases the original verdict of the jury upon the excluded issues was left undisturbed, not entirely brushed aside and a
diametrically opposite decision on the facts substituted therefor. The new trial on the one issue was without interference with the jury's findings on the other issues. See Yazoo M. V. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, L.R.A. 1915E, 239 and note, Ann. Cas. 1917E, 880; Lisbon v. Lyman,49 N.H. 553; Simmons v. Fish, 210 Mass. 563, 97 N.E. 102,25 Ann. Cas. 1912d 588, all containing extensive review of authorities. So, in cases where juries have allowed inadequate or excessive damages, this court has repeatedly allowed their verdict to stand on the issue of liability, granting new trials only on the issue of damages (5 Dunnell, Dig. Supp. § 7079, and see 16 Minn. L.Rev. 193; 5 C.J.S., Appeal and Error [New Trial], § 1935, note 45); but that is not what the majority here proposes to do. It proposes to substitute its verdict on the main issue for the verdict of the jury, and this in an action at law in which a jury trial is a fundamental right.
The limit of our power, in my opinion, is to direct a new trial upon all of the issues. The judgment appealed from should therefore be reversed without any further directions to the court below.