#### JOSEPH NETZER v. CITY OF CROOKSTON.1

November 27, 1896.

Nos. 10,333 — (139).

Judgment non Obstante Veredicto — Practice—Evidence.

*Held,*that the order of the court in directing judgment for the defendant notwithstanding the verdict was erroneous, because (1) *that*defendant did not bring itself within the provisions of Laws 1895, c. 320, as construed in Kernan v. St. Paul City R. Co., 64 Minn. 312; (2) under the evidence the question of defendant’s negligence was one for the jury.

*356Granting New Trial — Evidence.

But, while the evidence would justify a verdict for the plaintiff, it was not so manifestly and palpably in favor of the verdict as to make it error for the court to set it aside and grant a' new trial.

Appeal by plaintiff from a judgment of tbe district court for Polk county, in favor of defendant, entered in pursuance of the order of Searle, J., after a verdict in favor of plaintiff for $750.

Reversed.

*JL*Bteenerson, for appellant.

*Ole J. Vaule,*City Attorney, and *A. O. Wilkinson,*for respondent.

1

 Reported in 68 N. W. 1099.

MITCHELL, J.

The facts of this case were stated sufficiently for present purposes in tbe opinion on tbe former appeal. 59 Minn. 244, 61 N. W. 21. Upon tbe second trial tbe plaintiff again had a verdict, but tbe court set it aside, and ordered judgment for tbe defendant notwithstanding tbe verdict. Our conclusion is that in thus ordering judgment for tbe defendant tbe court was in error for two reasons.

Tbe defendant failed to bring itself within tbe provisions of Laws 1895, c. 320. To entitle a party to judgment under tbe statute two things are necessary. First. He must have made a motion to direct a verdict at tbe close of the testimony. Hemstad v. Hall, 64 Minn. 136, 66 N. W. 366. This requirement was substantially complied with by defendant’s request to instruct tbe jury to find a verdict in its favor. Although, in making up tbe record, tbe clerk of tbe court has inserted this request after tbe charge of tbe court, yet, in tbe absence of anything showing tbe contrary, we must presume that it was seasonably made. Second. After verdict the party must specifically move for judgment in bis favor. Tbe court cannot grant such relief on a mere motion for a new trial. A party may make bis motion in tbe alternative; that is, for judgment notwithstanding the verdict, or, in case that is denied, for a new trial. But on a motion for the latter alone be cannot be granted tbe former. Kernan v. St. Paul City R. Co., 64 Minn. 312, 67 N. W. 71; Crane v. Knauf, 65 Minn. 447, 68 N. W. 79. Upon tbe record before us we must bold that tbe only motion made by tbe defendant was for a new trial. Tbe notice of tbe motion which is contained in tbe record cannot be changed into something else by a mere recital in tbe judge’s order. *357It is only fair to the trial court to state that the order was made before the decision of Kernan v. St. Paul City R. Co., supra.

But, considered on the merits, the order for judgment was improperly made. We are of the opinion that defendant’s negligence was a question for the jury, especially in view of the fact that the alleged negligence, to which the evidence produced on the trial was directed, consisted not only of a failure to exercise reasonable diligence in repairing or rebuilding the sewer, but also of the failure to exercise reasonable efforts to care for the water tributary to the sewer until it was repaired or rebuilt.

But although the evidence justified a verdict for the plaintiff, it was not so manifestly and palpably in favor of the verdict that we could say that the court erred in granting a new trial. Counsel insists that, inasmuch as there have been two trials, both resulting in verdicts for the plaintiff, therefore the familiar rule of Hicks v. Stone, 13 Minn. 398 (434), is inapplicable, in view of what: was said in Van Doren v. Wright, 65 Minn. 80, 67 N. W. 668. But this is the first time the verdict has been set aside on the ground of the insufficiency of the evidence. On the former appeal the case was reversed on account of error in the charge of the court. Counsel is also in error in claiming that by the decision on the former appeal the sufficiency of the evidence to support a verdict was res adjudicata. That question was not considered or decided, as will be apparent by reference to the opinion.

The result is that the order of the court below was erroneous in so far as it directed judgment for the defendant, but not erroneous in so far as it set aside the verdict.

Judgment reversed, and the cause remanded for a new trial.