dissenting:
1. The result reached by the majority does not follow the reasoning expressed. The opinion holds that liability was established as a matter of law; that it was impossible for the jury to find for the defendants. If this is the case another trial on that issue should not be ordered. Such an order concedes that liability is a fact issue for jury resolution upon retrial. It is inappropriate to order another trial simply on the hope that a different result might be reached which will be more pleasing.
*6102. Liability is a fact question in this case. That question was fully explored and the jury found for the defendants. There is substantial evidence to support that determination. The evidence on proximate cause was conflicting. Delbert Green apparently died of carbon monoxide poisoning. It was the plaintiff’s theory that only the improper venting of the gas heater in Green’s motel room could explain the introduction of carbon monoxide into his system. Yet, it is uncontradicted that the bathroom window was open when the deceased was found. The plaintiff offered an expert witness who inspected and tested the heater on two different occasion shortly after the tragedy. He found no carbon monoxide present in the air on either occasion and concluded that the heater was not defective. These tests were made with the room closed, the windows and doors shut, and the heater turned to full capacity. The witness stated that “it would be conjectural” to conclude that carbon monoxide fumes emanated from the gas heater on the date of death. This is relevant and substantial evidence. It casts doubt upon the cause of death. The jury was free to accept that evidence and find that the plaintiff had failed to sustain her burden of proof on the issue of causation.
3. As noted in the majority opinion, the contention that liability was established as a matter of law was not presented to the trial court by appropriate motion under Rule 50. The failure to do so forecloses a challenge to the sufficiency of the evidence on appeal. The authorities cited in the majority opinion so declare. Having failed to move for a directed verdict on liability, the plaintiff was precluded from later moving for a judgment n.o.v. Lehtola v. Brown Nevada Corp., 82 Nev. 132, 412 P.2d 972 (1966). Despite her procedural default she suggests that we may now review the sufficiency of the evidence since she did move for a new trial upon that ground, among others. This suggestion is without substance since Rule 59 relating to new trials was amended in 1964 to eliminate as a ground for new trial “insufficiency of the evidence to justify the verdict.” Sierra Pacific Power Co. v. Day, 80 Nev. 224, 391 P.2d 501 (1964). The purpose of that amendment was to preclude a trial court from substituting its view of the evidence for that of the jury in a case where the losing party had failed to move for a directed verdict, or the court on its own had not directed a verdict. If the trial court is precluded from granting a new trial in such a case, surely this court, further removed from the atmosphere of the trial, is foreclosed from granting such relief.
4. The key to the majority opinion is the statement “we *611believe that the manifest injustice in this case is clearly evident . . .” This is a subjective evaluation of the evidence, an intrusion upon the jury function, and an activity in which this court should not engage. If the defendants win a second time and the matter is submitted for review, will the “injustice” continue to be “manifest?” Perhaps in that event a majority of this court will conclude that two trials of a fact question is about all that our system should offer. We believe that one trial is enough.