Jondal v. Chicago, Milwaukee, St. Paul & Pacific Railroad

HUSPENI, Judge

(concurring in part and dissenting in part)

The jury found that the railroad was 100% causally negligent. The trial court by awarding JNOV in effect determined that Jondal was 100% causally negligent. I believe a review of the record indicates that as a matter of law neither of these extreme positions is defensible.

I agree with the majority that the JNOV was improvidently granted and should be reversed. However, I would affirm the granting of a new trial. Even if the exclusive grounds for granting a new trial specified in Minn.R.Civ.P. 59.01 do not support the trial court’s action,

[t]he authority of this court to grant a new trial is somewhat broader than that of the district court, and we could direct a new trial * * * in this case if we were satisfied that the interest of justice so required.

Gorder v. Sims, 306 Minn. 275, 283, 237 N.W.2d 67, 72 (1975) (footnote omitted). See also Minn.R.Civ.App.P. 103.04. The facts and circumstances in this case persuade me that the interests of justice require a new trial so that a jury may apportion the causal negligence between the parties in a manner consistent with the evidence presented to it.