Immediately following that portion of the charge quoted by Mr. Justice WIEST, the trial court said:
"If you find the defendant furnished to Tesla Powers the kerosene which caused the explosion; that Tesla Powers delivered a quantity of it to Bert Powers; and some of it was obtained by Sylvester Sunday; and if the plaintiff has proved by a preponderance of the evidence that, when said kerosene was delivered to Bert Powers, it emitted, and when used in plaintiff's home on May 27, 1932, it emitted a combustible vapor at a temperature of 120 degrees, or less, of Fahrenheit thermometer when tested as provided by the laws of this State; and that such kerosene so tested because there was a leak in the compartment in the tank, then the defendant was negligent; and, if such negligence was the proximate cause of the damage, it would be liable."
Before the arguments, defendant's counsel requested the submission of certain special questions to the jury. The court announced that he would submit them, and counsel were permitted to base their arguments thereon. The questions and answers were as follows:
"Has the plaintiff satisfied you by a preponderance of the evidence that the kerosene used by Irene Sunday in lighting the fire at the time of this accident had a flash point of less than 120 degrees?
"Answer: Yes.
"Has the plaintiff satisfied you by a preponderance of the evidence that the tank wagon here in question had a leak, so that gasoline seeped from the gasoline compartment into the kerosene compartment?
"Answer: Yes.
"Do you find that the manner in which the kerosene was used by Mrs. Sunday in lighting the fire *Page 23 was the proximate cause of the accident independent of any other cause?
"Answer: No.
"If you return a verdict for the plaintiff in this case, state what amount, if any, you have awarded as part of your verdict, for pain and suffering.
"Answer: $6,000.
"If you return a verdict for the plaintiff in this cause, state what amount, if any, you have awarded to the plaintiff for future loss of earnings.
"Answer: $3,000."
In view of the above instruction and the questions and answers, it seems clear to me that the jury were in no way influenced by the instruction complained of, and that it cannot be said to have affected their verdict.
I concur in holding that the errors considered were without merit. I am also of the opinion that the verdict was not against the great weight of the evidence.
It is urged that the verdict was excessive. That the deceased suffered intensely is apparent. She lived about nine hours after the accident.
"Assessment of damages for pain and suffering demands calm calculation, to some extent a heartless computation, and the feelings must be held in check, in order to arrive at a reasonable money award." Stone v. Sinclair Refining Co.,230 Mich. 472, 474.
I am impressed that the award of $6,000 for pain and suffering was excessive. If the plaintiff will, within 20 days after the filing of this opinion, remit $3,000 therefrom, the judgment for $6,000 should stand affirmed; otherwise, it should be reversed and a new trial ordered. In any event, the defendant should have costs of this appeal.
McDONALD, C.J., did not sit. CLARK, J., took no part in this decision. *Page 24