In Re State of Goretska

(dissenting) — This dissent is directed at Division III of the majority opinion. I agree that the issues were for the jury and that the court properly refused to direct a verdict for defendant. But upon what theory can the action of the trial court in setting aside the verdict and granting a new trial be upheld?

There is no conflict in the evidence. So far as the record shows the evidentiary facts are as definitely fixed as if stipulated. But concerning the ultimate facts — the inferences to be drawn by the jury from the undisputed physical facts — reasonable minds might well differ.

The…