Dahlquist v. Minneapolis & St. Louis Railway Co.

Per Curiam. Action for personal injuries and for damage to plaintiff’s truck resulting from a collision between his 1935 Ford pickup and one of defendant’s locomotives. The jury returned a verdict for plaintiff. Plaintiff appealed from an order granting defendant’s motion for judgment notwithstanding the verdict, made in response to an alternative motion for judgment or a new trial. We are confronted at the threshold of consideration of this case by the fact that the settled case does not disclose a motion to direct a verdict in favor of defendant at the close of all the evidence offered. The fact that defendant, at the close of plaintiff’s evidence, moved for a directed verdict does not satisfy the statute which authorizes the alternative motion for judgment notwithstanding the verdict or a new trial. M. S. A. 605.06. The identical question was presented to this court in the case of Callahan v. City of Duluth, 197 Minn. 403 , 267 N. W. 361 . The court, although the motion for new trial was not before it unless it denied the motion for judgment notwithstanding the verdict, denied the motion for a new trial. That part of the court’s order denying a new trial is vacated. Kies v. Searles, 146 Minn. 359 , 178 N. W. 811 ; Rieke v. St. Albans Land Co. 180 Minn. 540 , 231 N. W. 222 ; Central Metropolitan Bank v. Fidelity & Casualty Co. 159 Minn. 28 , 198 N. W. 137 ; Parker v. Fryberger, 165 Minn. 374 , 206 N. W. 716 . The order granting defendant judgment notwithstanding the verdict therefore must be reversed. Reversed.