143 Minn. 427 | Minn. | 1919
Defendants appeal from a judgment awarding plaintiff damages for timber trespass. The only ground assigned for reversal of judgment is that the court erred in denying defendants’ motion for judgment notwithstanding the verdict, and that depends upon whether the evidence reasonably justifies a verdict for plaintiff or requires one in defendants’ favor.
Plaintiff owned two forties of land a few miles south of Buhl upon which, it is claimed, the defendants, in the winter of 1914 and 1915,
The testimony produced by plaintiff in effect flatly contradicts that of defendant on the very subject matter of the cause of action. There was irreconcilable conflict also between the expert witnesses of the parties as to what the stumps disclosed as to the time of the cutting. For each side the trend of the testimony was that the cutting which each undertook to prove was of the virgin timber, that is, there had been no previous logging of any consequence on the land. It perhaps was significant to the jury that the defendant who had actual charge of the logging on the ground in 1914 and 1915 absented himself from the trial and that the men who worked in the timber that season were not produced as witnesses, with the exception of a foreman whose testimony
The rule is that judgment notwithstanding the verdict should not he ordered, where there is a clear conflict in the evidence upon a material issue. Hess v. Great Northern Ry. Co. 98 Minn. 198, 108 N. W. 7, 803; Berghuis v. Schultz, 119 Minn. 87, 137 N. W. 201. It should not be ordered unless the evidence is practically conclusive against the verdict. 2 Dunnell, Minn. Dig. § 5082. The verdict here is not based on attenuated inferences from facts testified to, but must he regarded as resting upon the veracity of witnesses who related what they actually saw defendants’ logging crew do upon plaintiff’s land in the winter of 1914 and 1915. There was no suggestion that any other parties cut any timber in that vicinity during that season. The case does not come within the decisions of Baxter v. Covenant Mut. Life Assn. 81 Minn. 1, 2, 83 N. W. 459, or Gorgenson v. Great Northern Ry. Co. 138 Minn. 267, 164 N. W. 904, cited by defendants. Where the prevailing party has -adduced direct and positive testimony of the existence of facts which, if found true by the jury, clearly call for the verdict rendered, the opposing litigant is not entitled to judgment notwithstanding, unless such testimony is demonstrably false and it is made to appear that the defect in the proof could not be remedied on another trial.
The action has been tried twice, resulting each time in a verdict for plaintiff. The trial court, in the memorandum appended to the order denying the motion for judgment, stated that had either party asked for a new trial he would gladly have granted it. Neither party saw fit to so do. It may well he that the verdict is so small when compared with what the evidence would justify that it either indicates such an injustice to plaintiff or such a compromise of the rights of defendants
The judgment is affirmed.