Opinion
No. 5079.
September 25, 1928.
APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. W.F. McNaughton, Judge.
Action for damages for personal injuries. Judgment for plaintiff. Affirmed.
Allen P. Asher and Danson, Lowe Danson, for Appellant.
Myrvin Davis and Sidney H. Smith, for Respondent.
Counsel cite no authorities on points decided.
This action arose out of the same circumstances involved in the cases of Dale v. Jaeger, 44 Idaho 576, 258 P. 1081, and Steadman v. Jaeger, 44 Idaho 582, 258 P. 1082. Plaintiff herein is the same Brown mentioned in the opinion in Dale v. Jaeger. The appeal is from a judgment for plaintiff.
Appellant assigns as error that the court "erred in denying the motion for nonsuit, and denying a directed verdict for the defendant." Motion for nonsuit at the close of plaintiff's case was not renewed at the close of all the evidence, and was therefore waived. ( Blackfoot City Bank v. Clements, 39 Idaho 194, 226 P. 1079.)
The record does not show any motion for directed verdict at the close of the evidence. However, a peremptory instruction, directing a verdict for the defendant, was requested and refused. No error in refusal of instructions is assigned. Waiving the sufficiency of this assignment of error, and the point is not made by respondent, we have considered it as an assignment of error in denying a motion for a directed verdict, and have examined the record in that light. On a motion by a defendant for directed verdict, the evidence must be viewed in the light most favorable to the plaintiff. When the evidence is such that impartial minds might fairly and reasonably differ in the conclusions to be drawn therefrom, it presents a question of fact for the jury, and such motion should be denied. (2 Bancroft's Code Practice and Remedies, sec. 1443.)
This case differs in its evidence from that of the Dale and Steadman cases in that there was evidence of plaintiff's conduct and protest which, if found in his favor, would remove his case from the rules enforced in the Dale and Steadman cases. The evidence was sufficient to present a question of fact for the jury, and the verdict will not be disturbed.
The judgment is affirmed, with costs to respondent.
Wm. E. Lee, C.J., and Givens, J., concur.
I am unable to concur in the opinion written in the above-entitled case and concurred in by two of the justices. As I read the evidence there is no material difference in the proof offered in the Dale and Steadman cases, cited in the opinion, from that offered in the instant case, which being true there is no sound basis for upholding the judgment.
Petition for rehearing denied.