concurring and
dissenting.I concur in the majority opinion with the exception of Parts II and III. Part II reverses the trial court’s granting a J.N.O. V. relative to an assignment of 5% comparative negligence to plaintiff.
The trial judge, who had a better overview than we of the evidence and its implications relative to causation stated:
1. Plaintiff’s Motion for judgment Notwithstanding the verdict is granted as it relates to the jury’s allocation of 5% negligence to Ann T. Howes. This apportionment can only be based on specula-, tion on the part of the jurors, there being no evidence to support such a finding. The plaintiff was not negligent in any manner which could be a proximate cause of the accident.
I would defer to the trial court’s assessment.
Part III of the majority opinion seeks to repeal I.R.C.P. 59(a)(6) which provides:
Rule 59(a). New trial — Amendment of judgment — Grounds.— A new trial may be granted to all or any of the parties and on all or part of the issues in an action for any of the following reasons:
*6896. Insufficiency of the evidence to justify the verdict or other decision, or that it is against the law.
It is understandable that Dinneen and Quick, which deal with passion and prejudice, being our most recent cases, pre-occu-py our thinking. That does not excuse us from reading, knowing and applying the whole rule.
The focus of Dinneen and Quick was on I.R.C.P. subsection 59(a)(5) because that is the way the attorneys briefed and argued it.
The trial court’s additur herein comes squarely within the “insufficiency of the evidence to justify the verdict” provision of I.R.C.P. 59(b)(6).
The last sentence of Part III of our Opinion should read:
Accordingly, we reverse the trial court’s additur unless it is coupled with the offering of a new trial as an alternative. BISTLINE, Justice, dissenting.
I.
Where a defendant moves a trial court for a new trial, the trial court in its discretion may (1) grant a new trial, or (2) deny a new trial but condition that denial on the plaintiff’s filing a consent to accept a reduction in the jury’s damages in such amount as the trial court finds to be excessive. This is known as the alternative of consenting to a remittitur, an evolvement of case-law precedént. Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950). In that case the trial court concluded that a plaintiff’s $40,000 verdict was excessive, and on that ground granted a new trial. On plaintiff’s appeal, the Supreme Court agreed that the verdict was excessive. Because “new trials necessarily occasion delay, hardship and expense to the parties,” and “no harm can arise from affording an opportunity to the plaintiff to avoid a new trial and obtain an immediate judgment for the lesser amount,” the Supreme Court:
remanded with directions to the district court to vacate the order granting a new trial and to enter judgment on the verdict for the plaintiff’s in the sum of $20,000, if ... the plaintiffs file a written consent to the reduction of the verdict and acceptance of judgment in the amount of $20,000, and in the event of plaintiff’s failure to file such consent to give full effect to the order for a new trial.
70 Idaho at 468, 220 P.2d at 684-85.
Similarly, Idaho case law evolved the adoption of the use of an additur where a plaintiff moved for a new trial on the grounds that the evidence did not sustain a jury’s verdict, in that the verdict was insufficient. The trial court on considering the motion could (1) grant it, or (2) deny it, on condition that the defendant file his consent to the entry of a judgment in such amount as the court determined that the jury should have at the least awarded on the basis of the evidence presented. Fignani v. City of Lewiston, 94 Idaho 196, 484 P.2d 1036 (1971).
Justice Bakes in his opinion has come fairly close to this view wherein he writes that “the trial judge can grant an additur or remittitur only by offering a new trial as an alternative ...,” with which I agree other than for his particular phraseology. The grant is of a new trial; the alternative is that the other party may consent to a remittitur or an additur. But, not acceptable is his apparent understanding that as a prerequisite to taking any such action the court must find that the verdict was either too much or too little as “the result of passion or prejudice” on the part of the jury. (Bakes, J., p. 686, 769 P.2d at 563.)
Thus, taking himself astray, he proceeds to state that because the trial court expressly found no passion or prejudice, there was no “predicate for [an order] awarding an additur as an alternative to offering a new trial.”
Justice Bakes is thus seen in error in stating that an excessive or inadequate award, absent the finding of passion or prejudice, will not sustain the grant or denial of a new trial with the attached condir tions of, respectively, a consent to a remit-titur or to an additur, as the case may be depending on whether a defendant or plaintiff is the moving party. Having thus laid a faulty cornerstone, he would reverse the *690trial court’s provision for additur. He concludes that granting the additur of $14,000 for permanent disfigurement without offering the defendants the alternative of a new trial was error.
Methinks that Justice Bakes does the trial court an injustice on this point. There is nothing in the court’s ever-expanding me of procedural rules, to date at least, which spells out, or even purports to spell out, the specific language required to pursue the quest for an additur or a remittitur. As stated above, both have evolved from case law. Both have become adjunctive to either a defendant’s motion for a new trial or a plaintiff’s motion for a new trial.
In the case at bar the plaintiff’s written motion for an additur was explicitly based on Rule 59. Implicit therein the relief sought was necessarily an alternative to a request for a new trial or damages on the issue of disfigurement damages. There is no such thing as a free-standing motion for an additur or for a remittitur. The trial judge has had many years of trial experience before condescending to enter public service, and it is ill-considered to suggest that he did not fully realize that the plaintiff’s motion could only be pursued under the auspices of the rule which governs a trial court’s grant of a new trial. Implicit therein, as I say, is that if the requisite consent to an additur is not filed, a new trial on damages is the only viable alternative. It is true, however, that the motion could have been better worded. Equally so, the trial court should have worded his order expressly to provide that, if the addi-tur was not consented to, there would be a new trial.
Hopefully it will not offend counsel, the trial court, and my associates on this Court, to recommend that the Fignani case should be closely read, with special attention to this passage:
However, as we held in the case of Ri-card v. Gollen,
since the adoption of Idaho Rules of Civil Procedure, particularly Rules 50(b), 50(c), 59(c) and 59(d), failure to comply with the requirements of statutory Rule 10-604 does not ipso facto oust the court of jurisdiction to grant a new trial.
Under Rule 59(d) the trial court could have ordered a new trial on its own motion. Our rejection of appellants’ argument on this point is further buttressed by Rule 61, Idaho R.Civ.P., which provides in part that:
No error ... by any of the parties is ground for ... vacating, modifying, or otherwise disturbing a judgment or order unless refusal to take such action appears to the court inconsistent with substantial justice....
The motion for a new trial was in substantial compliance with the procedural requirements for such a motion. Enumerated paragraph “1” of the motion specifies the particulars in which the evidence was alleged to be insufficient, and clearly infers that the motion was made on the basis of the record of the evidence adduced at trial. That is sufficient.
Fignani v. City of Lewiston, 94 Idaho 196, 198, 484 P.2d 1036, 1038 (1971) (emphasis added).
This case is essentially in the same posture as our very recent case of Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212 (1988), where a district court of the same district was said to have not considered its own authority to grant a new trial, independent of any such motions by the parties. This Court directed it to so consider.
Additionally, it is readily discernible that Justice Bakes has erred in relying upon and quoting from Sawyer v. Claar, 115 Idaho 322, 766 P.2d 792 (Ct.App.1988). Idaho case law does not require that the trial court in all instances must determine whether an excessive or inadequate verdict has resulted from a jury appearing to have acted under the influence of passion or prejudice. A trial court after going through the weighing process, and then the comparing process, will then make the determination of inadequacy or excessiveness, and accordingly rule on the motion for new trial. That is the teaching of Checketts v. Bowman, supra, where passion and prejudice was given no consideration in awarding a new trial, and in fact, *691was specifically rejected. The trial court there held the verdict excessive. The Supreme Court agreed, and also unanimously decided by how much it was excessive.
Passion and/or prejudice was specifically ruled out by the trial court, and then on appeal was not in the Supreme Court’s equation. The rule in place at the time of Ckeeketts was:
“[Wjhere it appears that the damages are so large as to indicate the influence of passion and prejudice in the verdict a new trial will be granted. If it appears that the verdict is excessive but passion and prejudice are not indicated, the court will reduce the verdict to the amount supported by the evidence making its acceptance optional.”
(See excerpts in the attached Appendix A.) Summerfield v. Pringle, 65 Idaho 300, 144 P.2d 214 (1943).
II.
A reversal of the trial court’s order striking the jury’s assessment of 5 percent comparative negligence to the plaintiff is not justifiable. On occasion this Court has been known to preach of the importance of a trial court’s opportunity for assessing the credibility of the witnesses, as against this Court’s confinement to a cold printed record. Hence, I stand utterly aghast at reading in Justice Bakes’ opinion that there is some evidence which supports the defendant’s theory of plaintiff’s negligence, i.e., that plaintiff knew of Hulit’s restricted driver’s license, yet rode in the car knowing that Hulit would be driving after dark. That “some evidence” is her flat-out unequivocal testimony that she was not aware until after the accident As the trial judge himself stated in his written order, the jury had to be speculating when they found plaintiff 5 percent negligent. Justice Bakes thinks that the solution is found in plaintiff’s pre-trial deposition ‘where the plaintiff testified to an arrangement for the two other persons in the car, Hulit and Corbett, to switch seats after driving from Gooding to Shoshone, and Corbett would drive. The collision occurred before the group reached Shoshone. It is extremely difficult for me to see how an appellate court in the second instance, and a jury in the first, can glean from that testimony a factual finding that plaintiff was aware of Hulit’s eye problem. The plaintiff testified under oath that she was unaware. The trial judge by nature is conversant with sheer speculation; he heard her testify, and was in a far better position to assess her credibility as against one speculative inference which might have been drawn from the pre-arranged switch in drivers.
Equally so with the not-so-much-in plain view farm equipment. She saw “two lights at quite a distance,” and only before impact, at night, knew that the two lights were attached to something, a silhouette or a van. Worse yet for her, she couldn’t remember saying anything by way of warning the driver as the vehicles collided.
Justice Bakes would find her negligent on that skimpy evidence, or at least uphold a jury finding which did so. I disagree. Two white lights far ahead, and getting closer only on closing is not unusual. Likewise not making out to what the lights are attached, or which direction the lights are moving is hardly an indication of the presence of imminent danger, as the correct statement in instruction No. 20 informed the jury.
While it is true that the 5 percent assessment is not a monumental figure, it is absurd to hold this plaintiff in any way responsible for the happening of this accident and her resultant injuries. The facts of this case are such that the collision very likely was bound to happen, if one gives due consideration to all of the circumstances, which I do not see as being here realistically done.
My vote is to not interfere with the trial court’s conclusions drawn after presiding over the trial and hearing and seeing the witnesses. Sheer speculation is not a worthy substitute for testimony found credible and conduct found to be basically faultless. I would accept that the plaintiff filed a Rule 59 motion, which is true, and remand with instructions to reconsider that motion in light of Fignani, 94 Idaho 196, 484 P.2d *6921036, and Smallwood, 114 Idaho 860, 761 P.2d 1212.
A reversal in this case can only be justified if it is restricted to allowing the defendants the usual twenty days in which to file a consent to the additur, or otherwise face a new trial on damages.
APPENDIX A
ORDER.
This matter having theretofore come on for hearing upon the Motion for New Trial and Notice of Intention to move for a new trial, as filed by the defendants herein, plaintiffs being present by their counsel B.W. Davis and L.F. Racine Jr., and the defendants being present by their counsel O.R. Baum and Ben Peterson, and after submission of the same, the matter having been taken under advisement by the Court waiting the filing of briefs, and now, on this day, the court being fully advised in the premises and having heretofore announced its decision, and it appearing to the court that the verdict and damages returned in said cause was and is unreasonably excessive, NOW, THEREFORE,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED That the said Motion for New Trial be and the same is hereby granted by reason of the fact that said verdict is unreasonably excessive, and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED That a new trial on the ground aforementioned be and the same is hereby granted, and IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the verdict heretofore made and entered in the above entitled matter be and the same is hereby set aside and the judgment entered therein shall be and the same is hereby set asidé, for reasons aforementioned, and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED That said Motion for New Trial, as to the other grounds therein stated, be and the same is hereby denied.
LET NEW TRIAL BE HAD.
Dated this 5th day of January, 1949.
L.E. Glennon
DISTRICT JUDGE
FILED Jan. 5, 1949.
ORDER GRANTING NEW TRIAL, R., p. 323-24, Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950).