Cited by

Co. v. Carr, 119 N.H. 851, 854 (1979); Underhill v. Baker, 115 N.H. 469, 472 (1975); Bennett v. Larose, 82 N.H. 443, 445-48 (1926); 5 R. WIEBUSCH, NEW Hampshire Practice, Civil Practice and Procedure § 48.01, at 326, § 56.03, at 426-27.

Thus, although the trial court has substantial discretion to set aside a verdict based on the weight of the evidence, Kierstead, 118 N.H. at 496, 389 A.2d at 431; Wisutskie v. Malouin, 88 N.H. 242, 244, 186 A. 769, 770 (1936); Bennett v. Larose, 82 N.H. 443, 445, 136 A. 254, 255-56 (1926), the question of whether a judgment n.o.v.

Both issues, however, are questions of fact for the trial court.

This variant of the Belknap standard was cited in a line of cases including Bennett v. Larose, 82 N.H. 443, 447, 136 A. 254, 256 (1926) (in motions to set aside the verdict as against the weight of the evidence, the applicable standard is “whether there was such a preponderance of evidence in favor of the moving party as to justify a finding of passion, prejudice, partiality, corruption or plain mistake”) (citations omitt

This is not a case where the jury “unwittingly fell into a plain mistake,” Bennett v. Larose, 82 N.H. 443, 447, 136 A. 254, 256 (1926), nor was it apparent that “the verdict was produced by passion, partiality or corruption,” Marshall v. Morin, 79 N.H. 351, 352, 109 A. 80 (1920) (quoting State v. Wren, 77 N.H. 361, 367, 92 A. 170, 174 (1914)).

A judge’s decision to set aside a jury’s verdict as contrary to the weight of the evidence is limited to eases in which “the evidence in favor of the [party] is of such overwhelming weight that everyone must find in her favor, and nothing but mistake, partiality, or corruption could account for the verdict and its supporting finding.” Id,., 377 A.2d at 887 (quoting Bennett v. Larose, 82 N.H. 443, 448, 136 A. 254, 257 (1926)).

mised on his claims that the tree was climbable by young boys, that the uninsulated line located ten inches from the trunk of the tree created a foreseeable, unreasonable hazard to someone in the tree, and that the defendant failed in its duty to do anything it could have done to “reduce hazards to life as far as practical,” the plaintiff argues that the jury fell into a plain and witless mistake.

As stated in Bennett v. Larose, 82 N.H. 443, 447, 136 A. 254, 256 (1926) “a motion addressed to the weight of the evidence primarily presents a question of fact for the presiding justice.” An exception to the trial court’s decision “presents for this court only the determination of the issue whether the presiding justice acted witlessly in passing upon the wit

Compare Wendell v. Safford supra with Lisbon v. Bath, 21 N.H. 319, 335 (1850) [and] Lawrence v. Towle, 59 N.H. 28, 30 (1879) [and] Doody v. Railroad, 77 N.H. 161, 163, 89 A. 487, 489 (1914) [and] Bennett v. Larose, 82 N.H. 443, 448, 136 A. 254, 257 (1926) [and] Wisutskie v. Malouin, 88 N.H. 242, 186 A. 769 (1936).

of any intentional misrepresentation but did express his opinion that thé evidence relating to the inspection and repair of the car after it left defendant’s control was “improper.” In setting aside the jury verdict for the plaintiff and ordering a new trial, the judge did not find the jury to have been motivated by “passion, prejudice, partiality, corruption or plain mistake.” Bennett v. Larose, 82 N.H. 443, 447, 136 A. 254, 256 (1926); Underhill v. Baker, 115 N.H. 469, 343 A.2d 643 (1975).

The standard for review of a verdict as against the weight of the evidence is extremely narrow, as defendants recognize, and is well stated in Bennett v. Larose, 82 N.H. 443, 448, 136 A. 254, 257 (1926).

It follows that the claim that there was insufficient evidence to sustain verdicts for the defendant is not now available to the plaintiffs.

A motion to set aside a verdict must be granted only when the evidence is so far in favor of the losing party as to “disclose mistake, partiality or corruption on the part of the triers of fact.” Bennett v. Larose, 82 N.H. 443, 448, 136 A. 254, 257 (1926).

Bennett v. Larose, 82 N.H. 443, 136 A. 254 *610 (1926); Stabrow v. Stabrow, 96 N.H. 74, 75, 69 A.2d 863, 864-65 (1949); Velishka v. Laurendeau, 100 N.H. 46, 118 A.2d 600 (1955).

No motion for a directed verdict was made by the plaintiffs so that the first ground is not available to them.