1 Reported in 242 N.W. 469. The two defendants separately appealed from a judgment awarding damages for the wrongful death of Edward H. Yager, plaintiff's intestate.
Decedent was riding with defendant Held in his Ford sedan. They were traveling on paved trunk highway No. 3 near St. Cloud. Defendant Weidner and another were riding in Weidner's truck traveling in the opposite direction. It was nighttime. The two motor vehicles collided, and Yager was killed.
The complaint charged concurring negligence on the part of the two defendants. Each defendant in his answer denied negligence and pointed to the other defendant as being responsible for the collision. Upon the trial plaintiff showed that these vehicles were traveling at 40 to 45 miles per hour.
Plaintiff rested without calling either of the defendants or the man riding on the truck with defendant Weidner. These three men should be able to disclose the facts so that the jury may place the responsibility where it belongs. Defendants rested without offering any testimony. Their separate motions for directed verdicts were denied. The verdict against both defendants for $7,500 followed. Defendants did not ask for a new trial, but now seek judgment notwithstanding the verdict.
1. Plaintiff contented herself by showing the fact of the collision and the result. The proof does not show the reason why the vehicles collided. The fact of the collision apparently necessarily shows that one or both were on the wrong side of the road. It may be that each was partly on the wrong side of the road. We do not know. It may be that but one was on the wrong side of the road. But if so, which was in the right and which was in the wrong? Plaintiff must prove negligence. An examination of *Page 73 the record satisfies us that the evidence is insufficient to sustain the verdict. The deficiency rests in the fact that one defendant may have been free from negligence; and, if so, we cannot say which defendant that was. It would seem that plaintiff has a good cause of action and should recover, but the evidence fails to show that both of the defendants were guilty of negligence, and upon the record it may be that one of the defendants may not be guilty of negligence. It follows that the evidence fails to establish which defendant, if but one, was guilty of negligence. It does not necessarily show that both were guilty of negligence.
It seems so obvious that this accident resulted from one or both of the defendants' being on the wrong side of the road that we give little consideration to the question of speed. If, however, there is evidence, which is not conceded, that permits a finding that both defendants were negligent because of speed, the fact remains that plaintiff has not sustained the burden of proof resting upon her showing that the negligence of both defendants proximately contributed to the accident.
2. Defendants cannot be given the relief which they seek upon this appeal for the reason that we have a very definite rule that where it appears probable, as here, that a party has a good cause of action or defense, and that deficiency of proof may be remedied on another trial, judgment should not be ordered. 3 Dunnell, Minn. Dig. (2 ed. Supp.) § 5082.
In cases wherein the appeal is from the judgment after the order has been made denying a motion for judgment notwithstanding a verdict but without asking for a new trial, as here, this court has said that we would not grant judgment even where there was a total absence of evidence on some material point, but where it appeared probable that the party had a good cause of action or defense and that the defect in the evidence could be supplied on another trial. 3 Dunnell, Minn. Dig. (2 ed. Supp.) § 5082, note 8, and cases cited. In Farmers State Bank v. Merchants M. State Bank, 164 Minn. 300,303, 204 N.W. 965, 966, it was said: *Page 74
"It was also held that, if the defendant elects to stand exclusively on his motion for judgment, he is not entitled to that relief, even though there was a total absence of evidence on some material point, if it appears to be probable that the plaintiff had a good cause of action and that the defect in the evidence could be supplied on another trial. Kreatz v. St. Cloud School Dist. 79 Minn. 14, 81 N.W. 533."
3. Defendants moved only for judgment and rested upon that motion alone. They thereby waived the errors which might have given them a new trial. N.W. Marble T. Co. v. Williams,128 Minn. 514, 151 N.W. 419, L.R.A. 1915D, 1077; Farmers State Bank v. Merchants M. State Bank, 164 Minn. 300,204 N.W. 965; Bragg v. C. M. St. P. P. R. Co. 81 Minn. 130,83 N.W. 511.
4. Where a judgment is reversed in this court upon the ground that the finding of fact on which such judgment is based is not sustained by the evidence, a new trial must inevitably follow. In other words, the reversal of the judgment results in the necessity of a new trial without our expressly granting a new trial. Jordan v. Humphrey, 32 Minn. 522, 21 N.W. 713; Backus v. Burke, 52 Minn. 109, 53 N.W. 1013; Cool v. Kelly, 85 Minn. 359,88 N.W. 988. This results in a new trial when it is not asked. We cannot permit a judgment to stand when the evidence is insufficient to support it. Such a judgment should be reversed. In a dissenting opinion in In re Appeal of Meyer,176 Minn. 240, 223 N.W. 135, the writer made a probably erroneous statement that this court had granted new trials when they were not asked. Perhaps we have done no more than to reverse judgments which results in a new trial though a new trial is not sought.
The judgment is reversed.