court directed a verdict in favor of the Great Northern Railway Company, whereupon respondent moved for a new trial as against the Great Northern Company, which was denied by the trial court on February 26, 1907. The Omaha Company made an alternative motion for judgment notwithstanding the verdict or for a new trial, which motion the trial court denied, and from that order the Omaha Company appealed, and this court decided that it was entitled to a new trial. 102 Minn. 81, 112 N. W. 875. After the filing of that decision, respondent moved for reargument, which motion was denied. 102 Minn. 88, 112 N. W. 1081. The cause was then remanded to the district court, and respondent made a motion to vacate and modify the order of the trial court, of date February 26, 1907, "to the end that a rehearing may be had upon plaintiff's motion for a new trial as to defendant the Great Northern Railway Company, and that such new trial may be granted, and that the said order of said court be so modified to the extent of granting plaintiff's said motion for a new trial." The notice of motion contained the following statement: "The supreme court" "has held that the evidence received upon the trial of said action, and contained in the settled case, should have been submitted to the jury for its determination, both upon the question of the negligence of the switch-tenderman and upon the question of the defective condition of the switch." The trial court granted the motion upon the ground that the verdict and decision, in so far as it concerned the Great Northern Company, was not justified by the evidence, and that company appealed.

Appellant contends that the direct, proximate, and sole cause of the derailment of the engine was the negligence of the switchman in failing to properly throw and lock the switch, that there was no evidence tending to show that the switch was defective, that the verdict directed by the court in favor of appellant was fully justified and required by the evidence, that the application to set aside the verdict was not made in good faith, and that the court had no authority or jurisdiction to entertain the motion.

By reference to the former decision (102 Minn. 81, 112 N. W. 875, 1081) it will be noticed that a new trial was granted as to the Omaha Company upon the ground of misconduct of a juror, and upon the ground that the instructions were somewhat misleading, and that the jury were not clearly informed what effect they should give to the condition of the switch in determining the liability of the Omaha Company. What was said in the opinion and in the order denying the application for a rehearing was solely with reference to the liability of the Omaha Company. The merits of the controversy as between respondent and the Great Northern Company were in no manner considered. The court was of opinion that there was evidence in the case tending to show that the switch did not operate perfectly, that it required extra effort on the part of the switchman to close and fasten it, and those facts were to be taken into consideration by the jury in determining whether or not the switchman was negligent in operating it. To repeat: It was not the intention of the court to determine whether or not there was any evidence tending to show that the switch was in such a defective condition as to support the charge of negligence against the Great Northern Company for installing and maintaining it in such condition.

Appellant insists that the trial court proceeded under a misapprehension, and granted a new trial upon the express ground that this court had held that the evidence as to the condition of the switch was sufficient to go to the jury on the question of the liability of the Great Northern Company. It does not appear from the order that the trial court placed its decision upon that ground, and it is apparent from the memorandum attached to the order that the court thoroughly understood the views of this court as expressed in the decision and the order denying a reargument. After referring to the order, the court states: "This was clearly intended as a ruling, as between plaintiff and the defendant Omaha Company, that the evidence presented a question as to its liability because of the defective condition of the switch. While this was not spoken with reference to the liability of defendant Great Northern Company, yet the evidence was the same as to both, and it must follow from this ruling that the case should have been submitted to the jury as to the defendant Great Northern Company." It seems quite apparent that the trial court was of opinion that its former decision in directing a verdict for appellant was not justified by the evidence, and we shall not assume that the trial court intended to base its order upon the assumption that this court had undertaken to decide a matter which was not before it.

The time for appeal had not expired. We find no evidence of bad faith on the part of respondent in making the application, and discover no reason why the learned trial court did not exercise a sound legal discretion in modifying the order.

ation had controlling influence upon the conclusion of the trial court" in its finding that no fraudulent practices were resorted to.

The facts were quite fully stated in the previous opinion of this court. The essential issue on the merits now is, as was there stated, whether the defendants fraudulently "represented that they proposed to probate the estate and secured her [plaintiff's] signature to a conveyance, falsely pretending that it was a petition for the appointment of an administrator." No question of law is here involved, save the familiar one whether the findings of fact embodying the special finding of the jury previously set forth are sustained by the evidence. The trial court which made this finding presided at the jury trial. He heard and saw the witnesses. This is a case to which the rule in Hicks v. Stone, 13 Minn. 398 (434), applies with particular force. His view of the sufficiency of the evidence must be sustained.

The second class of errors assigned concerns the admission or rejection of testimony occurring at the trial. We have examined all the specifications, and find none of them sufficient to justify a reversal. Affirmed.

W. C. KENNEDY v. FRANK O. HEULIN.1

May 1, 1908.

Nos. 15,443-(6).2

Appeal by plaintiff from an order of the district court for Marshall county, Grindeland, J., denying his motion for judgment in his favor notwithstanding a verdict in favor of defendant for the sum of ten dollars, upon a counterclaim. The facts are stated in the opinion, Affirmed.

Bernard B. Brett, for appellant.

Julius J. Olson and Rasmus Hage, for respondent.

PER CURIAM.

This action was brought in a justice court to recover $70, claimed to be due as the balance of the agreed purchase price of certain horses. The plaintiff recovered judgment, and the defendant appealed to the district court on questions of law and fact. The trial in the district court resulted in a verdict in favor of the defendant for ten dollars on a counterclaim. The appeal is from an order denying the plaintiff's motion for judgment in his favor notwithstanding the verdict or for a new trial. No assignments of error are made in this court, and we might very well decline to consider

Reported in 116 N. W. 1134.

2 April, 1908, term calendar.

any of the questions discussed in the briefs. The appellant has treated the reasons assigned in the motion heard in the trial court as though they were assigned in this court, and the respondent has not called attention to the irregularity.

The court submitted to the jury the questions whether there was a delivery and acceptance of the horses, and, if there was not an acceptance, the amount which the defendant was entitled to recover on the counterclaim. The verdict was sustained by the evidence, and the order of the trial court is therefore affirmed.

CHRIST HALVORSON V. NORTHERN PACIFIC RAILWAY COMPANY.1

May 1, 1908.

Nos. 15,561-(51).

Defendant's motion From the judgment

Action in the district court for St. Louis county to recover $1,999 damages for personal injuries. The case was tried before Cant, J., and a jury which returned a verdict in favor of plaintiff for $999. for judgment notwithstanding the verdict was denied. entered pursuant to the verdict, defendant appealed. Washburn, Bailey & Mitchell, for appellant. John Jenswold, Jr., for respondent.

PER CURIAM.

Affirmed.

A switch engine in need of repairs was run into the round house and placed over an ash pit under the smoke stack in the usual way. In order to repair the defective part it was necessary for the plaintiff to work in front of the engine. While thus engaged the engine suddenly started and ran over him, inflicting injuries for which he claimed damages. After a verdict was returned in favor of the plaintiff, the defendant moved for judgment notwithstanding the verdict but did not move for a new trial. The defendant appealed from the judgment.

It was alleged in the complaint that the defendant was negligent in several respects, but the only allegation as to which there is any evidence, and the only ground of negligence submitted to the jury, was that the defendant had not exercised ordinary care in seeing that the engine was properly blocked.

The defendant offered evidence to show that the blocks were placed under the engine wheels and claims that the plaintiff's evidence fails to show the contrary because it was of a negative character, that is, the testimony

1 Reported in 116 N. W. 1134.