The evidence in this case is such that the issues as to the defendant's negligence and the plaintiff's lack of contributory negligence were properly submitted to the jury, and from it the jury might reasonably have found in favor of the plaintiff upon both issues. The court did not err in so holding, and in refusing to set aside the verdict.
The defendant's motion for a judgment notwithstanding *Page 528
the verdict was entirely inappropriate to the situation before the court. Such a judgment is not rendered upon the evidence, but upon the admissions of the pleadings. The judgment is in its essence one by confession. The defendant's pleadings consisted solely of denials of the allegations of the complaint. Of necessity, therefore, there are no uncontroverted allegations entitling him to a judgment, even if it be assumed that such a judgment may be rendered in favor of a defendant upon the plaintiff's cause of action, as at common law it could not be. 1 Swift's Digest, s. p. 779; Stephen on Pleading, s. p. 98; Schermerhorn v.Schermerhorn, 5 Wend. (N. Y.) 513, 514; Smith v.Powers,
There is no error.