Concurring Opinion by
Mr. Justice Dean :I concur in the judgment in this case but do not concur in the reasons therefor. They do not, in my opinion, keep sufficiently in view the character of the evidence adduced on both sides at the trial, but strike me as resting, in the main, on what is assumed by this court to be an excessive verdict.
The function of determining the truth from contradictory evidence, in this commonwealth is confided to the jury. As long as our constitution declares that trial by jury shall remain as heretofore, the stability and permanency of our judicial system will be best served, if all those concerned in its administration keep strictly within the lines laid down by the fundamental law.
Here, it was in effect conceded that plaintiff at time of trial was a physical wreck beyond hope of repair. It was also conceded, that about five months before the car accident he had fallen from a building and sustained very serious injury ; further, it was scarcely denied that at this time he had apparently, in good degree, recovered from the effects of the first injury and was again earning a livelihood.
*525At the trial, plaintiff had offered evidence tending to show: 1. Negligence on part of defendant resulting in personal injury. 2. That recovery from his first injury had been arrested thereby, and permanent disability induced.
The trial was long and the contradictory testimony abundant. The questions from it for the jury to answer were: Had defendant by negligence injured plaintiff? If so, to what extent? Was the first injuiy permanent or only temporary, and he on the road to recovery at the time of the second one ? If even his first injury was permanent, was it aggravated by the second ? If not permanent, liad it been made so by the second ? The conflicting evidence bore on all these questions. The importance of the case suggested a full and clear exposition of the law applicable to it; it was the manifest duty of the judge to give it, and no weariness brought on by a long and vexatious trial, or aversion to the drudging labor necessary to the elimination of confusing and irrelevant details, from that which bore directly on the important issue, could absolve him from this duty. This was not performed, and in this sense the charge was inadequate. It was not such a charge as, in a case of this gravity, both parties had the right, not only to expect, but to demand. Therefore, there was error, not in commission, for there is nothing fairly objectionable in what was said, but in omission. I will not undertake to say the jury erred in their verdict, for I do not know. I have no more right to tell them what was the truth from this testimony, than they have to tell me what is the law applicable to it. ~ I do know, however, they did not have from the court that full and clear statement of the law applicable to the evidence which should precede intelligent deliberation and correct conclusion. A jury of the very best informed kiymen are entitled to this much aid from the court. These, very briefly, are my reasons for sending the case back for retrial; not because the jury certainly erred, but because they had not all the light they ought to have had from him whose duty it was to carry the lantern, and therefore, being left in the dark, they may have stumbled.