Minn. R. Civ. P. 50.02(2) provides: A motion for judgment notwithstanding the verdict may include in the alternative a motion for a new trial. When such alternative motion is made and the court grants the motion for judgment notwithstanding the verdict, the court shall at the same time grant or deny the motion for a new trial, but in such case the order on the motion for a new trial shall become effective only if and when the order granting the motion for judgment notwithstanding the verdict is reversed, vacated, or set aside.
Plaintiff pedestrian was walking on a public sidewalk adjacent to a hotel when she was struck by falling debris. The pedestrian filed an action for personal injuries against the hotel and others. After a jury trial, a verdict and award for damages was returned for the pedestrian. Defendants moved for judgment notwithstanding the verdict or for a new trial. The trial court granted defendants' motion for judgment notwithstanding the verdict, but denied the motion for a new trial. The pedestrian appealed of the order granting the judgment notwithstanding the verdict, and the order was reversed. Defendants appealed from the part of the order which denied their motion for a new trial, and contended the closing remarks of the pedestrian's counsel, who commented on defendants' failure to call a witness, were improper. The court affirmed the order which denied defendants' motion for a new trial.
Was the court's that denial of the motion for a new trial in plaintiff pedestrian's action for personal injuries a clear abuse of discretion?
Since the matter of granting a new trial for improper remarks or argument of counsel is governed by no fixed rules but rests almost wholly in the discretion of the trial court, the action of the trial court in this regard will be reversed on appeal only for a clear abuse of discretion. The court stated that the record did not indicate the trial court clearly abused its discretion, especially in view of the wide discretion which the trial court was entitled to exercise under such circumstances.