I concur.
We are not here confronted with a situation wherein the court was ruling on a motion for a new trial. In passing upon a motion for a new trial the trial judge, as it were, becomes a thirteenth juror, and may weigh the evidence and pass upon the credibility of witnesses. But, as pointed out in the foregoing opinion, no such power is reposed in the court when passing upon a motion for judgment notwithstanding the verdict.
A petition for a rehearing was denied January 3, 1951, and respondents’ petition for a hearing by the Supreme Court was denied February 8,1951. Shenk, J., Edmonds, J., and Spence, J., voted for a hearing.