(dissenting).
I have no doubt as to the insufficiency of the evidence to sustain the verdict, and think a new trial should be granted. But I adhere to the dissenting views expressed in the case of Brennan Lumber Co. v. Great Northern Ry. Co., 80 Minn. 214, 83 N. W. 140. I may be wrong in my interpretation of the Cruikshank case and of the statute, but I am unable to reconcile myself to that view. It seems perfectly. clear to me that the interpretation given in the Cruikshank case is the only one the statute will bear, consistent with the recog*3nition of the constitutional right to trial by jury. It is there said that the purpose of the statute was to extend the common-law practice of granting judgment notwithstanding a verdict of a jury from the pleadings to the evidence in the case. To warrant a judgment notwithstanding the verdict, therefore, the evidence should be as defective as the pleadings are required to be under the old practice. Formal and technical defects in the pleadings are insufficient to warrant such a judgment, and so, under the new practice, technical and formal defects in the evidence should also be held insufficient. Prior to this statute the remedy, when a jury returned a verdict in favor of a party upon insufficient evidence, was a new trial. Such should be the remedy still, except in cases where it is clearly apparent that all the evidence attainable by either party has been produced, in which case final judgment may be ordered if such evidence be conclusive one way or the other. The suggestion that parties should not be annoyed and put to the expense of repeated trials is without weight. No serious consequences resulted under the former practice, and no reasons are apparent why any should be apprehended under the new. Judgment notwithstanding the verdict should never be granted on the weight of evidence, but only when all the evidence attainable by either party has been produced, and is conclusive, as a matter of law, on the merits of the controversy, in favor of the party against whom the verdict is returned. In the case at hand I think, as was said in Kreatz v. St. Cloud School Dist., 79 Minn. 14, 81 N. W. 538, that the evidence lacking to make out plaintiff's cause of action may be supplied on another trial, and that the court below should have granted a new trial only.