dissenting:
I continue to adhere to my earlier dissent in this matter. See supra at 421, 767 P.2d at 264 (Bakes, J., dissenting on denial of petition for rehearing). I write today only to point out the error in the majority’s claim that Brand S Corp. v. King, 102 Idaho 731, 639 P.2d 429 (1981), supports its action in this case.
The instant case and Brand S Corp. are clearly different. In fact, they are at opposite ends of the spectrum. Although both cases involve the granting of a j.n.o.v., in the instant case j.n.o.v. was granted in favor o/the party who had the burden of proof, even though the evidence offered by plaintiff to carry that burden was rejected by the jury. Conversely, in Brand S Corp. j.n.o.v. was granted against the party with the burden of proof because insufficient evidence was presented to support its affirmative defenses. The Court held that the party had failed to carry its burden of proof.
Here, in order to hold F-B Truck Line responsible for the accident under the ICC regulations, the plaintiffs had the burden of proving that the trailer involved in the accident had been trip-leased to F-B Truck Line. Plaintiffs attempted to meet their burden by introducing the testimony of the driver, MacGuinnis. However, as the trial court acknowledged, the jury found the testimony of MacGuinnis not to be credible. Furthermore, the jury apparently chose to believe the testimony of F-B Truck Line’s witness, Barnes, who testified that the trailer he trip-leased was different than the trailer involved in the accident. Notwithstanding the jury’s factfinding in this regard, the trial court nevertheless granted j.n.o.v. for the plaintiffs — the party who had the burden of proof and who the jury found failed to carry it.
In Brand S Corp., however, the j.n.o.v. was granted against the party who had the burden of proof. It is one thing to grant a j.n.o.v. against a person because he has not met his burden of proof. It is an entirely different matter, though, to grant a j.n.o.v. in favor of the person with the burden of proof when the jury has found that person’s witnesses were not credible. If the jury is the exclusive judge of credibility and the ultimate finder of fact, as they were instructed here, then how can a trial judge grant a j.n.o.v. in favor of a person having the burden of proof where the jury has rejected his evidence as not credible, as they did in this case?1
Plaintiffs Harvey and Wells had the burden of proof. The jury found plaintiffs’ evidence to be impeached and not credible, *428while the testimony of the defense witness was credible. Under those circumstances the j.n.o.v. in favor of plaintiffs should never have been granted.
The Brand S Corp. case does not support the majority’s result because Brand S. Corp. involved the granting of a j.n.o.v. against a party which failed to meet its burden of proof. The instant case, however, involves the granting of a j.n.o.v. in favor of a party who the jury found had failed to meet its burden of proof. They are not the same thing as the majority mistakenly holds. Accordingly, I dissent from the majority’s opinion which attempts to sustain its result based upon the Brand S Corp. case.
JOHNSON, J., concurs.. In the very first instruction he gave, the trial judge formally charged the jury to find the facts and judge the credibility of witnesses. In pertinent part, Instruction No. 1, which was a composite of IDJI Instructions 100, 110 and 111, reads:
“It is your duty to determine the facts....
"You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In determining the credit to be given any witness you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.”
However, by granting the j.n.o.v. in favor of the plaintiffs, after acknowledging that "the jury could have elected to believe either or both of those witnesses (MacGuinnis or Barnes)," and after concluding that "the jury to a large extent found the testimony of James Barnes to be credible,” the trial court usurped the jury’s authority and responsibility as "the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them." Instruction No. 1.