(dissenting).
I am unable to agree with the opinion of the majority wherein they have incorrectly applied the rules relating to judgment notwithstanding the verdict, negligence, contributory negligence and proximate cause in this case. In holding the plaintiff con-tributorily negligent they have invaded the province of the jury.
A motion for judgment notwithstanding the verdict, in effect, calls for a review of the trial court’s ruling in denying the motion for directed verdict made at the close of all the evidence. Such motion brings before the trial court, for a second time, questions raised by the motion for directed verdict. In considering such motion, the evidence must be viewed in the light most favorable to the verdict. Johnson v. Frelich, 153 N.W.2d 775 (N.D. 1967); Erhardt v. Gold Seal Chinchillas, Inc., 144 N.W.2d 744 (N.D. 1966); Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953). And the verdict will not be set aside if there is any evidence to sustain it. Long v. People’s Department Store, 74 N.W.2d 80 (N.D. 1956); Nicholson v. Roop, 62 N.W.2d 473 (N.D. 1954).
On motion for judgment notwithstanding the verdict, the evidence must be considered most favorably to the one in whose favor the jury returned a verdict. Linington v. McLean County, 146 N.W.2d 45 (N.D. 1966).
In Lee v. AAA North Dakota Automobile Club, 68 N.W.2d 835, 837 (N.D. 1955), we said:
Since this is an appeal from a judgment notwithstanding the verdict, the first question for decision is whether defend*101ant was entitled to a directed verdict at the time the motion for a directed verdict was made. Nicholson v. Roop, N.D., 62 N.W.2d 473; Weber v. United Hardware & Implement Mutuals Co., 75 N.D. 581, 31 N.W.2d 456; Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455. This question in turn is dependent upon whether the evidence, when viewed in the light most favorable to the party against whom the judgment notwithstanding was entered, presents any substantial issues of fact for the jury to determine. Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455; La Bree v. Dakota Tractor & Equipment Co., 69 N.D. 561, 288 N.W. 476.
The motion for judgment notwithstanding the verdict admits all inferences and conclusions which can reasonably be drawn from the evidence which are favorable to the party opposing the motion. Linington v. McLean County, 146 N.W.2d 45 (N.D. 1966); Schmitt v. Northern Improvement Company, 115 N.W.2d 713 (N.D. 1962).
In this case was the trial court justified in ordering judgment for the defendant notwithstanding the verdict? Our first inquiry now is as to whether, taking the view of the evidence most favorable to the plaintiff, the plaintiff can be said to have been contributorily negligent in attempting to dislodge the jagged piece of glass in the window. Did he fail to use ordinary care to examine the window to ascertain the condition and circumstances before attempting to remove the jagged piece of glass?
We conclude that it was for the jury to determine whether or not the plaintiff had used ordinary care. The court has no right or authority to invade the province of the jury. It cannot substitute its judgment for that of the jury nor usurp its privileges and functions. The majority opinion does not pass upon the insufficiency of the evidence to sustain the verdict but deliberately substitutes its own convictions and decisions on the question of fact for that of the jury. We do not sit as triers of fact as in trial de novo on appeal from a case tried to the court.
While, if we were the triers of the facts, our decision might have been contrary to that of the jury, we are not prepared to say that but one conclusion or inference could properly be deduced from the facts. * * *
Paulsen v. Modern Woodmen of America, 21 N.D. 235, 130 N.W. 231, 234 (1911).
The majority stresses that in the testimony of the plaintiff he admitted that had he taken time to examine the situation he would not have done what he did do in attempting to remove the glass. The majority concluded that he proceeded without giving the matter any thought and recklessly and impulsively grabbed the broken glass remaining in the window. However, an afterthought of what the plaintiff thought he might have done is not the test. The test of what ought to be done is fixed by the standard of what an ordinary, prudent person under the same circumstances and in the same position would do. Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774 (1941).
In Schmitt v. Northern Improvement Company, 115 N.W.2d 713 (N.D. 1962), quoting Mr. Justice Holmes in Texas and Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905, we said in Syllabus 9:
What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.
In McCullagh v. Fortune, 76 N.D. 669, 38 N.W.2d 771, 779 (N.D. 1949), this Court said:
“The standard by which the conduct of a person in a particular situation is judged in determining whether he was negligent is the care which an ordinarily prudent person would exercise under like circumstances. As has been said, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate *102the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Concisely stated, the test of due care is the supposititious course of an ordinarily prudent and careful person under the same circumstances.” 38 Am.Jur., Negligence, Sec. 30, P. 676.
“Ordinary care is such as an ordinarily prudent person would exercise under similar circumstances. That standard of care is unvarying, but the degree of care varies with the circumstances.” 1 Shear-man & Redfield on Negligence, Revised Edition, p. 6.
Upon the record in this case it cannot be said as a matter of law that the plaintiff was contributorily negligent in attempting to remove the jagged piece of glass from the window. In Larson v. Farmers’ Elevator Co. of Dwight, 63 N.D. 396, 249 N.W. 116, 118, cited in Wolff v. Light, 156 N.W. 2d 175, 179 (N.D. 1968), we said:
Negligence and contributory negligence are primarily questions for the jury. They become questions of law only when the facts are such that reasonable men, in the exercise of reason and judgment, can draw only one conclusion therefrom. We are agreed that in this case it cannot be said that the only conclusion that reasonably could be drawn is that the plaintiff was guilty of negligence, but that, on the contrary, the situation presented here is one where intelligent men, in the exercise of reason and judgment, may come to different conclusions, and that, consequently, it was proper to submit to the jury the questions of negligence and contributory negligence, and that the decision of the jurors on these questions is binding upon the court.
The standard of conduct required of an individual is that of the supposed conduct, under similar circumstances, of a hypothetical person, the reasonable man of ordinary prudence who represents a community ideal of reasonable behavior of persons of the same age, intelligence, and experience. Sheets v. Pendergrast, 106 N.W.2d 1 (N.D. 1960).
The standard to be used in determining whether or not a party has been guilty of contributory negligence such as will defeat his recovery is whether his actions were those of an ordinarily prudent person in the same circumstances and in the same position. Olson v. Cass County Electric Co-Operative, Inc., 94 N.W.2d 506 (N.D. 1959); Bagg v. Otter Tail Power Co., 70 N.D. 704, 297 N.W. 774 (1941).
Ordinarily questions of negligence, contributory negligence and proximate cause are questions of fact for the jury. McCullagh v. Fortune, 76 N.D. 669, 38 N.W.2d 771 (1949).
We said in Titus v. Titus, 154 N.W.2d 391 (N.D. 1967), that issues of negligence and contributory negligence generally have to be tried. Even where there is no dispute as to facts it is usually for the jury to determine all the inferences and conclusions which may reasonably be drawn from the evidence favorable to the party opposing the motion, whether the conduct in question met the standard of the reasonable man.
The question of negligence is for the jury when different minds may reasonably draw different conclusions from the evidence. Burt v. Lake Region Flying Service, 78 N.D. 928, 54 N.W.2d 339 (1952).
In an action to recover damages for personal injuries, the questions whether the defendant has been negligent, and whether the plaintiff has been contributorily negligent, are for the jury to determine. “Not only where there is room for difference of opinion between reasonable men as to the existence of the facts — from which it is proposed to infer negligence, but also where there is room for such a difference as to the inferences which might be fairly drawn from concealed facts.” Shearman & Red-field on Negligence (6th ed.) § 54, cited in McCullagh v. Fortune, 76 N.D. 669, 38 N.W. 2d 771 (1949).
*103In Paulsen v. Modem Woodmen of America, 21 N.D. 235, 243, 130 N.W. 231, 234, this Court said:
Ordinarily the question of what inferences are deducible from the evidence is peculiarly a question for the jury, and it is only in rare instances that the court is justified in determining such question as a matter of law. If it can be said that reasonable men may fairly differ as to the inferences to be deduced from all the circumstances disclosed, it is a proper case for the jury.
In Carr v. Minneapolis, St. P. & S. S. M. Ry. Co., 16 N.D. 217, 112 N.W. 972, 974, the Court said:
Contributory negligence, as well as negligence of the defendant, are questions for the jury in a case at law, unless the conceded facts from which the inference must be drawn admit of only one conclusion. If the facts are such that different, impartial minds might fairly draw different conclusions from them, they should be submitted to the jury, and are only for the court when such that fair-minded men might draw only one conclusion from them.
In Taylor v. Minneapolis, St. P. & S. S. M. Ry. Co., 63 N.D. 332, 248 N.W. 268, 269, the rule is laid down that:
“In determining this issue the court must adopt the view of the evidence which is most favorable to the opposing party.” In Leonard v. North Dakota Co-Operative Wood Marketing Ass’n, 72 N.D. 310, 6 N.W.2d 576, 579, the court says: “The jury having returned a verdict for the plaintiff is presumed to have determined all questions of fact within the jury’s province in favor of the plaintiff.”
Considering the evidence in the light of these rules, can this court say as a matter of law that the defendant was entitled to a directed verdict ? May not reasonable men differ on the conclusion to be drawn from the facts shown in evidence ? Do the circumstances not dispute the evidence of the defendants ?
If, under the evidence, reasonable men may honestly differ, the ultimate question is one of fact for the jury.
Smith v. Knutson, 76 N.D. 375, 36 N.W. 2d 323 (1949).
Considering the record as a whole I come to the conclusion that the defendant was not entitled to a directed verdict when the motion was made at the close of the evidence. It follows that granting a judgment notwithstanding the verdict was error and must be reversed.
I adhere to what we said in Wolff v. Light, supra, on the questions of negligence of the defendant, proximate cause and intervening cause. These are matters that should be left to the jury to determine.