In 10 Blashfield's Cyclopedia of Automobile Law Practice, section 6698, it is said: "Upon proof sufficient to make at least a prima facie case that the casualty in question was the result of an unavoidable accident, the court should instruct the jury upon the law under such circumstances." (See, also, AlabamaProduce Co. v. Smith, 224 Ala. 688, 141 So. 674; Creamer v.Cerrato, 1 Cal. App. 2d 441, 36 P.2d 1094; Pearce v.Elbe, 98 Cal. App. 101, 276 P. 389; Kaline v. Davidson,146 Md. 220, 126 A. 68; Wilson v. Roach, 101 Okla. 30,222 P. 1000; Daniels v. Riverview Dairy, 132 Or. 549,287 P. 77; Southland Greyhound Lines v. King, *Page 65 (Tex.Civ.App.) 77 S.W.2d 281; El Paso Elec. Co. v. Portillo, (Tex.Civ.App.) 37 S.W.2d 219; Dallas R. Co. v. Speer, (Tex.Civ.App.) 299 S.W. 507; Russell v. Bailey, (Tex.Civ.App.)290 S.W. 1108; Meaney v. Portland E. Power Co., 131 Or. 140,282 P. 113; 45 C.J. 1141.)
Under the state of facts shown by the record, the court erred in refusing to give defendant's offered instruction on circumstantial evidence based upon decisions of this court. (Fisher v. Butte Elec. Ry. Co., 72 Mont. 594, 235 P. 330;Norton v. Great Northern Ry. Co., 85 Mont. 270, 278 P. 521;Mellon v. Kelly, 99 Mont. 10, 41 P.2d 49.)
Excessive verdict: It is difficult to account for a verdict of $12,000 having been rendered in this case until we discover that, as in the case of Tanner v. Smith, 97 Mont. 229,33 P.2d 547, the element of insurance was injected into the case, when the daughter of the plaintiff testified that the doctor in conversation with her regarding the accident, said, "I am very sorry this happened; I didn't see her until I hit her but my car is insured and I will see that she is taken care of." A verdict rendered under such circumstance is necessarily tinged with a willingness of the average jury to give away other people's money if such other person is supposedly the representative of wealth. The rule in regard to the action of this court as to excessive damages has been many times stated in the decisions, and is well set forth in the case of Ashley v. Safeway Stores, Inc.,100 Mont. 312, 47 P.2d 53. In Fulton v. Chouteau CountyFarmers' Co., 98 Mont. 48, 37 P.2d 1025, the court pointed out the fact that where the record shows "extrinsic matters which might easily create prejudice against the defendant and appeal to or arouse the passion of the jurors" (the injection of liability insurance into the case), a different situation is presented in reviewing the verdict from where such has not been done. In this case we have not only an excessive verdict but we have "extrinsic matters." *Page 66 Defendant first claims error on the refusal of the court to give its requested instruction on unavoidable accident. The court refused to give the instruction because there was nothing in the evidence to characterize the accident as unavoidable. Judged either by the evidence submitted by defendant and in his behalf, or by the evidence of plaintiff and her witnesses, the defendant was guilty of negligence which proximately caused the accident. Refusal of the instruction was proper. (See Tanner v. Smith,97 Mont. 229, 33 P.2d 547; Paolini v. Western Mill Lumber Corp., 165 Md. 45, 166 A. 609; Schapiro v. Meyers,160 Md. 208, 210, 153 A. 27; Coplan v. Warner, 158 Md. 463,149 A. 1, 2; York Ice Machinery Corp. v. Sachs,167 Md. 113, 173 A. 240; 10 Blashfield's Cyclopedia of Automobile Law Practice, sec. 6698, p. 500.) The defendant's own testimony, showing a sudden change of course without warning, established his negligence in running down plaintiff at a street crossing. (See Cleveland v. Petrusich, 117 Cal. App. 71,3 P.2d 384.)
An instruction on circumstantial evidence is not necessary if the case does not rest on it, although there may be some in it. (64 C.J. 612, par. 548; Roberts v. Port Blakely Mill Co.,30 Wash. 25, 70 P. 111.) This court has in criminal cases often upheld the refusal of the trial court to instruct on circumstantial evidence where there is direct evidence in the case in addition to the circumstantial evidence. (State v.Harris, 66 Mont. 25, 213 P. 211; State v. McComas,89 Mont. 187, 295 P. 1011.) The appellant seems to have confused circumstantial evidence with deductions that are made from evidence. "Deductions are always made from any evidence, but this does not necessarily make the evidence constituting the groundwork for such deductions circumstantial." (State v.Fox, 52 Idaho, 474, 16 P.2d 663.)
Excessive verdict: This court, in the case of McNair v.Berger, 92 Mont. 441, 15 P.2d 834, upheld a verdict for *Page 67 $30,000 where the loss in earning capacity was no greater although the life expectancy was higher. In this case, as in the case above cited, the court has approved the verdict of the jury by denying a new trial. The court has held the "amount of damages to be paid for personal injury is peculiarly within the province of juries," and that determining whether the award is excessive, "is a question of what amount of damages will the record in the case support when viewed, as it must be, in the light most favorable to the plaintiff." (Ashley v. Safeway Stores, Inc.,100 Mont. 312, 47 P.2d 53; Coolidge et al. v. Meagher,100 Mont. 172, 46 P.2d 684.)
Appellant says that the so-called "extrinsic matters" "were injected into the case by plaintiff's daughter for no other purpose than to influence the jury in arriving at their verdict." If, instead of denying his negligence and alleging contributory negligence on the part of the plaintiff, the defendant had admitted he was at fault, the evidence would not have been necessary. However, by denying that he was negligent and claiming that plaintiff was guilty of contributory negligence, defendant placed on plaintiff the burden of proving defendant's negligence to the jury by a preponderance of the evidence and should not now complain if the admission which he made to plaintiff's daughter and which he never denied making, is used by plaintiff in proving her case. Instead, after failing to avoid liability, he now seeks to reduce the amount of the verdict by claiming that his admissions of liability should not have been used against him and that they were only used to inflame the passions and prejudices of the jury. The amount of the verdict does not sustain his contention. This is an appeal from a judgment of the district court of Cascade county. Plaintiff, Adele Jewett, secured a judgment for $12,000 against defendant, A.L. Gleason, on account of injuries *Page 68 received in an automobile collision at the intersection of Second Avenue North and Ninth Street in the city of Great Falls. The accident occurred about 7:30 P.M. on the 21st day of December, 1933. Plaintiff was walking easterly across Ninth Street on the south sidewalk portion of Second Avenue. Defendant was driving his automobile in a westerly direction on Second Avenue, and turned to the left at the intersection. Plaintiff was struck as she was proceeding easterly on the crosswalk. She was knocked to the pavement and suffered personal injuries.
The contention of plaintiff, supported by the testimony of her witnesses, was to the effect that defendant in turning from Second Avenue into Ninth Street cut across the corner and struck her. It was the contention of defendant, and his witnesses so testified, that he proceeded to the center of the intersection and made the turn in accordance with the requirements of the city ordinances and at a lawful rate of speed, and that, from her position on the crosswalk, plaintiff without warning dodged backward into the path of the car and was thereby injured.
Plaintiff pleaded the applicable city ordinances, which provide, among other things, the limit of speed on the streets in that part of the city, the necessity for drivers to give pedestrians on crosswalks the right of way, the necessity of a driver intending to turn to the left at an intersection to proceed to the right of the center thereof before turning, the necessity for the sounding of the horn, and such other similar requirements. She alleged that defendant was guilty of eight separate and distinct acts of negligence in making the turn. The alleged acts were mainly violations of the ordinances mentioned.
Defendant in his answer admitted that the ordinances existed and that the collision occurred; he denied, however, that the collision or injuries were due to or caused by any negligence on his part. He pleaded contributory negligence on the part of plaintiff; this she denied by reply. *Page 69
At the close of plaintiff's testimony, motion for a nonsuit was made and denied. Defendant's case was then presented. The verdict for $12,000 resulted. Motion for a new trial was also made and denied.
Seven specifications of error are asserted; four of them pertain to the refusal of offered instructions, and the remaining three relate to the extent and alleged excessiveness of the verdict and the judgment.
The first refused instruction was on the subject of[1] unavoidable accident. We are of the opinion that no error was committed in refusing to give the instruction. The evidence did not indicate that there was an unavoidable accident, but rather indicated that the accident was due to the negligence of someone. "To bring a casualty within the legal meaning of the term `accident,' an essential requirement is that the happening be one to which human fault does not contribute." (Wilson v.Chattin, 335 Mo. 375, 72 S.W.2d 1001; Tanner v. Smith,97 Mont. 229, 33 P.2d 547, 550; Sherman v. Ross, (Colo.)62 P.2d 1151.) In 10 Blashfield's Encyclopedia of Automobile Law Practice (Permanent Edition), section 6698, p. 502, the following rule is stated: "Where the evidence shows that the accident was due to the fault and negligence of one or both of the parties the court should not instruct as to unavoidable accident." (See, also, Avra v. Karshner, 32 Ohio App. 492,168 N.E. 237.)
Defendant offered an instruction to the effect that the mere[2] happening of an accident in which plaintiff was injured did not of itself entitle her to recover. The rule of this court, as announced in Tanner v. Smith, supra, is as follows: "It is elementary that `instructions must be viewed as a whole where error in giving and refusing certain of them is relied on for a reversal of the judgment.'" Many authorities were there cited in support of that rule. An examination of the voluminous instructions given by the court makes it very apparent that the substance of the law contained in the offered instruction was contained in other instructions, and that therefore the instruction was properly refused. *Page 70
Another instruction offered and refused had to do with[3] circumstantial evidence, and, if given, would have advised the jury that a verdict could only be predicated upon substantial evidence, direct or circumstantial, and not alone upon conjecture, however shrewd, nor upon suspicion, however well grounded. The evidence presented in the record is not in agreement, but we fail to see that there was much left to conjecture or suspicion. It was really a question of which of the witnesses were worthy of belief. This matter was covered by the general instructions very fully. The reasons just given apply with equal force to defendant's requested instruction No. 21, which likewise referred to circumstantial evidence coupled with negligence.
Although the offered instructions stated sound law in the abstract and would be proper in some cases, they were either covered by the instructions given, or inapplicable and improper under the facts in this case.
The most serious assignment of error is that which relates to[4-6] the size of the verdict and the judgment, and is to the effect that it is excessive and so far out of proportion to the injuries suffered as to indicate that it was given under the influence of passion and prejudice. The question thus tendered must be considered in the light of the general principle that in this type of cases there is no measuring stick by which to determine the amount of damages other than the intelligence of the jury. (Fulton v. Chouteau County Farmers' Co., 98 Mont. 48,37 P.2d 1025, and cases cited.)
Applicable rules with relation to this matter have been often stated by this court and by many other courts. The proposition has always been a puzzling one for courts to solve. In the case of Ashley v. Safeway Stores, Inc., 100 Mont. 312, 47 P.2d 53, 62, the rule in this jurisdiction was restated in the following language: "It is a well-established rule of this court, and of courts generally, that the amount of damages to be paid for personal injury is peculiarly within the province of juries, and that such findings are final and conclusive unless *Page 71 the results are such as to shock the conscience and understanding of a court. It is always difficult to decide just when and under what circumstances that kind of condition exists. We do not deem it our prerogative to substitute our judgment for the judgment of a jury in the ascertainment of damages where the finding is based upon conflicting evidence. The rule in such a situation is no different from that obtaining in all controverted fact issues properly submitted to juries. It is not a question of the amount this court would have awarded under the circumstances. It is not the amount which in our opinion would compensate the injured party; rather it is a question of what amount of damages will the record in the case support when viewed, as it must be, in the light most favorable to the plaintiff. It is when the testimony — the facts of the case — fails to support and justify a verdict and judgment that the conscience and understanding of the court are shocked. Such a result must of necessity be shocking when it is understood as fundamental that solemn judgments of courts must be predicated upon definite and tangible supporting facts.
"We believe it is our duty to leave undisturbed and to affirm any judgment, regardless of size or extent, that has reasonable support in the evidence, even though the evidence is conflicting and controverted. It is not our province to resolve such controversies; that problem is for the jury. But, where the amount of damages awarded cannot be reconciled with a conscientious interpretation of evidence or a rational understanding of the facts as a whole, the court may then say that its conscience and understanding are shocked."
In the Ashley Case, supra, the verdict was approved in part and condemned in part. The decision was based upon the precedent established by the following cases wherein verdicts and judgments were ordered scaled down as an alternative for a new trial:Kennon v. Gilmer, 5 Mont. 257, 5 P. 847, 51 Am. Rep. 45;Forquer v. North, 42 Mont. 272, 112 P. 439; Wise v.Stagg, 94 Mont. 321, 22 P.2d 308; Tanner v. Smith,97 Mont. 229, 33 P.2d 547. *Page 72
Many judgments alleged to have been excessive on the grounds mentioned have been sustained by this court. Some of them have seemed excessive; but an examination of the opinions will disclose that in each instance resort was had to a consideration of the particular facts of the case, and that by reason of such facts it was held that the verdicts and the judgments were sufficiently sustained. Compare the following cases: Staff v.Montana Petroleum Co., 88 Mont. 145, 291 P. 1042; McNair v.Berger, 92 Mont. 441, 15 P.2d 834; Fulton v. ChouteauCounty Farmers' Co., supra; McCartan v. Park Butte TheaterCo., 103 Mont. 342, 62 P.2d 338, and authorities therein cited.
Here, plaintiff was a married woman 48 or 49 years of age. Her principal occupation was that of housewife. She testified that she had been engaged as a saleswoman in her spare time for a period of about twelve years prior to her injuries; she sold cosmetics and similar merchandise from house to house. She classified herself as a "specialty saleswoman," but further said, "I carried on my household duties and then did what selling I could outside of that." She estimated her annual earnings for the period of four years before her injuries at about $1,500. She also testified that she was possessed of talent as a singer, and had earned something by singing over the radio and at entertainments. The record shows that these earnings had probably averaged in the neighborhood of $100 per year for the years immediately preceding her injury. It will be observed that she had no established business or employment in either line of work, but merely carried on in the special enterprises in a manner incidental to her household duties. Before the accident she was a normally strong and healthy woman, and was able to walk long distances in the course of her several duties.
The evidence discloses that plaintiff sustained the following injuries: A cut, bruised, and sprained ankle; a fracture of the left clavicle, or collar-bone, which her doctor testified had healed up; black and blue bruises on the left side of the back; *Page 73 a ruptured varicose vein in her right leg; some teeth and bridgework loosened and broken out; and a fracture of the upper and outer surface of the left tibia, or knee. The last-mentioned injury was by far the most serious.
There was only one medical witness, the doctor who attended the plaintiff. His evidence was not contradicted. It is not necessary to repeat all that he said. He classified the fracture as a "compression fracture." He said that it amounted to a lowering or depression upon the outer surface of the left tibia, or bone in the left knee, and that it was disabling and would probably continue to be so for the rest of her life. He appraised this disability at about 50 per cent. so far as the usefulness of the knee was concerned, and said that she had an external lateral motion in the knee joint which was noticeable when she walked, and that, although in all probability she would ultimately be able to get along without a cane, she might have to use one for some time. He testified: "I think that after a certain length of time she would get so adapted to the condition that probably she could get along without a cane. She will be able to walk but she will tire easily in that knee joint because the articular surfaces are not protected and she will have some disadvantage in walking." He also testified that the other injuries had left no permanent disability; that the patient had no permanent symptoms of other injuries except that she was nervous; and that he would hardly term that as anything disabling.
Plaintiff was taken to a hospital immediately after the accident. There she was given treatment and remained for fifteen days. She thereafter returned to her home for a period of five or six days, and then returned to another hospital for thirty-four days. From there she again went home, where, she testified, she was confined to her bed from four to six weeks. She also testified that when she got up and around it was necessary for safety's sake to use crutches for seven or eight months, and that after that she got along with a cane. Plaintiff testified that since her partial recovery she was in a *Page 74 nervous condition; that she was unable to work at her household duties in a satisfactory manner; that she was entirely unable to proceed with her selling activities or her singing; and that thereby her earning capacity was practically destroyed. She is the mother of six children, three of them of age, and the other three younger. At the trial it was stipulated that the medical bill was $211, the hospital bill $317, and the incidental expenses $15.25.
A careful study of the record in this case convinces us that the case falls into the first-mentioned class of cases wherein the evidence was not sufficient to support the verdict. The evidence here is insufficient to support a verdict of $12,000. There is, however, evidence in the record which in our opinion is sufficient to support a judgment for $8,000, but no more. The expenses admitted as reasonable in the premises amount to $543.85. An allowance of $8,000 leaving a net of over $7,400 is all that the evidence in the case will support.
The cause is remanded to the district court, with directions to grant a new trial, unless within ten days after notice of the filing of the remittitur with the clerk of the court the plaintiff shall file her written consent that the judgment for damages may be reduced to $8,000. If such consent is given, the judgment shall be modified accordingly as of the date of its original entry, and, as modified, shall be affirmed. If plaintiff does not consent to such reduction of damages, the court is directed to grant a new trial. In case reduction is accepted by plaintiff, each party shall pay his or her costs on the appeal.
ASSOCIATE JUSTICES ANDERSON and MORRIS concur.