
    [No. 18608.
    Department One.
    June 3, 1924.]
    William Crooks, Appellant, v. W. R. Rust et al., Defendants, Georgetown Transfer Company, Respondent.
      
    
    Trial (63)- — Province oe Court and Jury — Judgment Non Obstante. A judgment notwithstanding the verdict of a jury cannot be granted when there was no absolute or undisputed physical fact demonstrating the falseness of oral testimony the credibility of which was for the jury.
    Appeal (487) — Decision—Matters Determined Without Further Proceedings. Where respondent made no motion for a new trial and elects to stand upon its motion for judgment notwithstanding the verdict which was granted, judgment on the verdict will be directed on reversing a dismissal of the action.
    Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered November 26,1923, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained through an obstruction in a street.
    Reversed.
    P. L. Pendleton and M. J. Gordon, for appellant.
    
      Murphy S Kumm, for respondent.
    
      
      Reported in 226 Pac. 262.
    
   Tolman, J.

This case has twice before been in this court; 119 Wash. 154, 205 Pac. 419, and 125 Wash. 563, 216 Pac. 869. After the dismissal of the appeal as reported in the last decision cited, the case was again tried to a jury, resulting in a verdict for the plaintiff in the sum of $500. The defendant interposed a motion for judgment notwithstanding the verdict, which was granted, resulting in a judgment of dismissal with prejudice, from which judgment the plaintiff has appealed.

The material facts shown upon the last trial do not differ substantially from those shown upon the former trials, though there are not wanting differences in detail, and some rather striking differences upon matters going mainly to the credibility of the witnesses. There was still sufficient testimony in line with that related in 119 Wash. 154, 205 Pac. 419, to take the case to the jury, and in the absence of some aosolute and undisputed physical fact demonstrating the falseness of the oral testimony, it was for the jury to consider the inconsistencies and to say whether or not the witnesses told the truth. It is the settled law of this state that judgments non obstante veredicto can be granted only when there is neither evidence nor reasonable inference from evidence upon which the verdict can rest. Brown v. Walla Walla, 76 Wash. 670, 136 Pac. 1166; Auwarter v. Kroll, 79 Wash. 179, 140 Pac. 326; Forsyth v. Dow, 81 Wash. 137, 142 Pac. 490; Caughren v. Kahan, 86 Wash. 356, 150 Pac. 445, and Campbell v. Dingley, 127 Wash. 579, 221 Pac. 308.

The transcript brought here discloses no motion for a new trial, and apparently the appellant has elected to stand upon its motion for judgment notwithstanding the verdict, and if that be denied accept the verdict of the jury. Under these conditions, the judgment appealed from is reversed and a judgment on the verdict directed.

Main, C. J., Holcomb, Mackintosh, and Parker, JJ., concur.  