concurring and dissenting.
I concur in the opinion of the majority except that part which finds error in the trial court’s granting a judgment n.o.v., and thus remands for a new trial.
The majority opinion holds that its decision reversing the trial court’s granting of a judgment n.o.v. is compelled by Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986). I disagree. Although the majority accurately characterizes the facts and the trial judge’s reasons for his ruling, the majority in my view, misinterprets the standard to be applied by a trial judge when ruling upon a motion for a judgment n.o.v. The majority opinion correctly quotes Quick as authority for the trial court’s lack of discretion and the inability of the trial judge to weigh the evidence and the credibility of the witnesses upon a motion for a judgment n.o.v. However, I disagree with the majority that the trial court did that which Quick forbids, i.e., weighing the evidence and the credibility of the witnesses.
In my opinion, Mann v. Safeway Stores Inc., 95 Idaho 732, 518 P.2d 1194 (1974) is the seminal case regarding the duties of a trial court when faced with a motion for a judgment n.o.v. In Mann, the Court, per Donaldson, J., reviewed the different tests found in earlier opinions of the Court, and “... concluded that the proper test ... is, a motion for judgment n.o.v. should not be granted when there is substantial competent evidence to support the verdict of the jury.” The Court in Mann, 95 Idaho at 736, 518 P.2d at 1198, continued:
By substantial, it is not meant that the evidence need be uncontradicted. All that is required is that the evidence be of such sufficient quantity and probative value that reasonable minds could conclude that the verdict of the jury was proper. It is not necessary that the evidence be of such quantity or quality that reasonable minds must conclude, only that they could conclude. Therefore, if the evidence is so weak that reasonable minds could not reach the same conclusion the jury has, the motion for judgment n.o.v. is properly granted.
Mann has been approved, followed and applied in Hibbler v. Fisher, 109 Idaho 1007, 712 P.2d 708 (Ct.App.1985); Brand S Corporation v. King, 102 Idaho 731, 639 P.2d 429 (1981); and Smith v. Great Basin Grain Co., 98 Idaho 266, 561 P.2d 1299 (1977). Indeed, in Quick, 111 Idaho at 764, 727 P.2d at 1192, the Court stated that the trial judge is not free to weigh the evidence or pass on the credibility of witnesses and make his own separate findings of fact to be compared to the jury’s findings:
Rather, the trial judge must view all of the evidence and all inference drawn therefrom in favor of the non-moving party and decide if there was substantial evidence to justify submitting the case to the jury, or, in other words, that there can be but one conclusion as to the verdict that reasonable minds could have reached. (Citations omitted). Thus, the function of I.R.C.P. 50(b) is to give the trial court the last opportunity to order the judgment that the law requires.
Turning to the instant case, it is my view that the majority has misapprehended the actions of the trial court in ruling on the motion for the judgment n.o.v. I do not *421agree that the trial court has either weighed the evidence or the credibility of the witnesses. I view the trial court’s mention of the credibility of MacGuinnis as merely a casual aside. As stated by the trial court, and also by the majority opinion, there was no direct evidence that MacGuinnis switched trailers. As indicated, MacGuinnis testified as to his actions from the time he picked up the Montgomery trailer until the time of the accident, and no switching of trailers was indicated in that testimony. Hence, the argument that the trailers were switched rests on no evidence, substantial or otherwise, but rather only on an inference which arises from the testimony of two witnesses, each identifying the trailer as being of a different manufacturer. Judge Durtschi identified that inference as resting on “the slender thread of an uncorroborated assumption,” and “pure speculation as to the circumstances and reason for the switching.” As correctly quoted by the majority, Judge Durtschi stated:
The record is totally silent as to why the supposed two switches were made, when they were made, where they were made, or where the phantom trailmobile trailer came from or what happened to it. It seemingly appeared at the Stinker Station from nowhere and thereafter disappeared, never to be seen again sofar as this trial record is concerned.
The trial judge then stated: “Hence, I conclude that the jury’s finding in answer to question no. 3 is not supported by substantial evidence and is in fact contrary to the great weight of the evidence.”
Hence, I would hold that the trial judge utilized the correct standard in ruling upon the motion for judgment n.o.v., i.e., that the jury’s finding was not supported by substantial evidence as set forth in Mann v. Safeway, supra, and its progeny. I would affirm the trial judge’s order granting the judgment n.o.v., and hence there is no necessity for a remand for a new trial.