providing that a new trial is unwarranted when it is possible for the jurors to reach the verdict that they reached after properly applying all jury instructions to the evidence presented at trial
How later courts described this case
- providing that a new trial is unwarranted when it is possible for the jurors to reach the verdict that they reached after properly applying all jury instructions to the evidence presented at trial
- "It is solidly established that when there is no request for a directed verdict, the question of the sufficiency of the evidence to sustain the verdict is not reviewable. A party may not gamble on the jury's verdict and then later, when displeased with the verdict, challenge the sufficiency of the evidence to support it." (citations omitted)
- “We prefer the rule that proof of a deviation from an administrative regulation is only evidence of negligence; not negligence per se.”
- “We prefer the rule that proof of a deviation from an administrative regulation is only *979 evidence of negligence; not negligence per se.”
Written by the judges who cited it.
The opinion
Collins, C. J., and Craven, D. J.,
concurring:
We concur in the authorities, reasoning and result announced in Mr. Justice Batjer’s opinion. However, there are some additional reasons which should be expressed in order that the import of that opinion not be misinterpreted.
There is no doubt under present authority, as stated in Mr. Justice Thompson’s dissent, that absent a motion for directed verdict under NRCP 50(a) we may not review the sufficiency of the evidence upon appeal. But that is not the issue on this appeal. Considering every miniscule part of evidence and testimony before the lower court, nothing refutes the physical facts *609 that Delbert Green died in Room N of the Sinnott Motel from carbon monoxide poisoning and the only source of that poison was the improperly vented gas wall heater. From the record on appeal before us, those physical facts are conclusive. 1 That is the only explanation of his death.
We seriously considered ordering the lower court to enter a judgment n.o.v. in favor of appellant on the issue of liability and remand of the case for retrial only upon the issue of damages. That action would have effectively precluded the difficulty suggested by Mr. Justice Thompson in the last paragraph of his dissent.
It is possible, however, on retrial defendants may be able to present additional evidence not presented in the first trial which conceivably could change the conclusiveness of the physical facts in the present record. We think, in fairness, they should be given that opportunity.
There would be extreme prejudice to a party in an unusual case such as this where counsel, through lack of legal appreciation, oversight or carelessness fails to make a motion for a directed verdict and judgment n.o.v., thereby ostensibly precluding us from reviewing the sufficiency of the evidence in the lower court. We are compelled to ameliorate the absoluteness of that interpretation of Rule 50 in the unusual situation presented by this case. That narrow exception is well stated by Mr. Justice Batjer in his opinion and supported by prior decisions of this court.
We believe that on retrial of this case counsel for plaintiff would not fail again to make a motion for a directed verdict and judgment n.o.v. if the evidence presented was virtually the same as in the first trial, thereby preserving for this court’s consideration the sufficiency of the evidence.
Physical facts which speak the truth unerringly cannot be overcome by oral testimony. Hart v. Kline, 61 Nev. 96 at 101 , 116 P.2d 672 (1941). See also Week v. Reno Traction Co., 38 Nev. 285 , 149 P. 65 (1915).