Page:North Dakota Reports (vol. 2).pdf/247

he worked for one year under the contract, but that defendant paid him for seven months only, and he asks judgment for the balance. The defendant admits a hiring at $50 per month, but alleges that it was for no definite time, and that plaintiff was discharged at the end of seven months. The contract was made by correspondence, and the trial judge instructed the jury that the contract was for no definite period, and left it to them to say how long the plaintiff worked for the defendant under the contract. There was a verdict for plaintiff for $250. Defendant moved for a new trial on the ground that there was no evidence to warrant the jury in finding that plaintiff worked for any period longer than seven months. Motion was denied, and defendant appeals, and assigns this denial as error. There is no question in the case except a question of fact. The learned attorney for the respondent makes no attempt in this court to defend the verdict farther than to invoke for its protection the rule which prohibits courts from interfering with the verdict of a jury on matters of fact where there is a conflict in the testimony. This court has frequently adhered to that rule, Observance of the rule is absolutely necessary for the proper discharge of the separate functions of the court and jury. But an abuse of the rule is usually followed by a failure of justice. It is not the duty of any court, nor has it the right, to close its eyes to obvious facts. Courts were instituted to promote justice, and not to perpetuate error. A court may not substitute its judgment for that of the jury, but it should say whether or not the judgment of the jury has been fairly and impartially exercised, or whether or not the result shows the unmistakable presence of passion, or prejudice, or a disregard of the evidence submitted. Appellate courts have been cautious and reluctant about disturbing the verdict of a jury on questions of fact, but to prevent a miscarriage of justice they were forced to abandon the old rule as to a scintilla of evidence, and adopt the safer and more reasonable rule that now prevails almost universally, and which permits and requires a court to set aside a verdict that the court considers wrong, unless there be a substantial conflict in the evidence. Whenever an appellate court conscientiously and irresistibly reaches the conclusion that a ver-