I dissent. This case was argued and submitted before this court on-December 23, 1918. It was again reargued before this court on November 17, 1919. The case is now (December 2, 1919), about to go down affirmed under the majority decision. I adhere to my conclusions, stated in an opinion circulated by me in the month of February, 1919. If the plaintiff has been injured to the extent of the verdict rendered, which the majority opinion sustains, and which in my opinion the evidence does not warrant, this action should long *48ago have been determined as a matter of simple justice to the plaintiff. I am firmly of the opinion that a new trial should be awarded this case, conditioned upon the payment into court of an amount of money, for the use and benefit of the plaintiff, necessary to cover costs, expenses, and for an opportunity to .establish her true physical condition before a jury. My conclusions upon the record herein, are as hereinafter stated:
This is an action for personal injuries, sustained by the plaintiff on February 3, 1915. At the time she was .working as a servant or domestic in an old brick veneered building known as the Ely Block, and Annex, owned by the defendant in the city of Fargo. While proceeding down the back stairs to the basement of such building to attend the furnace, a portion of the rear brick wall fell, some of the brick hitting the plaintiff. She was knocked down, and the alleged injuries sustained thereby form the basis of this action.
In the district court trial was had, commencing January 24, 1918, and ending February 1, 1918. The jury rendered a verdict for the plaintiff of $26,000. After judgment was entered, the defendant moved for judgment non obstante, or in the alternative, for a new trial, and from the order of the trial court denying the same, and from the judgment rendered, defendant prosecutes this appeal.
The record herein is extensive and the briefs of the parties voluminous. The defendant has assigned nearly one hundred errors, covering the rulings of the trial court upon the admission of evidence, remarks of the court and of counsel, instructions of the court, and covering other alleged errors of law occurring during the course of the trial, and upon the motions made by the appellant thereafter.
The record has been investigated with considerable care with respect to the many assignments of error that have been specified by the appellant.
In view of the determination of the principal questions considered herein, I deem it unnecessary to consider the numerous assignments of error in detail, except as hereinafter stated concerning the principal question in this case which has seriously engaged our attention. Upon the entire record herein I am satisfied that the jury were warranted in finding the defendant guilty of actionable negligence for such injuries as the plaintiff has actually sustained.
*49The principal question, therefore, is the amount of the verdict rendered. The appellant challenges the same upon the ground that it is manifest that excessive damages have been given by the jury under the influence of passion or prejudice, and that, upon the whole record herein, the evidence does not justify the same as rendered.
In many respects this is an unusual case. At the time of the injury the plaintiff was twenty-two years of age; until she was sixteen years of age she had worked on a farm with her mother; she had reached the eighth grade in school; thereafter she came to Fargo and worked out as a domestic for several years. For nearly a year prior to the accident, she was working for her mother in this block taking care of rooms and of the furnace and receiving therefor $25 per month and her room and board. Theretofore she has been strong and healthy. The defendant on April 3, 1913, leased for eight years the second floor of this Ely Block to one James Papas or James Papamanoles, a Greek. This Greek some years previous had married the sister of the plaintiff. Since the leasing and up to the time of the trial this Papas and his wife had occupied a room in this block. On June 24, 1913, this Papas assigned to his mother-in-law, the mother of the plaintiff, this lease, and thereafter the mother had charge of the premises. There is evidence in the record that this building with reference to the brick wall which fell had been in an unsafe condition for a time extending back long before the making of the lease. That on the day of the accident the plaintiff was found at the bottom of the stairway with brick from this brick wall upon and about her; that she was picked up and canned to a room in this building; that she was unconscious, and bleeding at the mouth and nose; that across her back there appeared a contused bruised area extending from the upper surface of her shoulder blades 5 or 6 inches down the spinal column, and from the right shoulder down on the right arm nearly to the elbow. The skin was broken in places with a slight hemorrhage. There were no broken bones. There she was put to bed, there a doctor was called in and attended her, and there she has ever since remained in hed in this block.
There is evidence in the record that for nearly three years up to the time of the trial the plaintiff has been paralyzed; the doctors, the experts for the plaintiff, diagnose her condition as “traumatic neurosis” or “traumatic paralysis,” an affectation of the motor nerves with ac*50companying hysteria, an accompanying exaggeration of the sensory nervous system. She has received the care and attention of her relatives, particularly her sister and her mother. She has been attended by a doctor, an expert witness for the plaintiff, a homeopathic physician, who has attended her, at first daily, then thrice a week, thence twice, and thence once per week, and who has prescribed for her in accordance with the principles of homeopathy. She has been attended by a nurse, an assistant in the Nelson Sanatorium, since March 23, 1915, who came there at first thrice a week, thence twice a week, and later once per week. This nurse administered massage and electric treatments with her hands, an electric vibrator, and the so-termed “lucre-descent” light treatment.
Thé evidence adduced by the plaintiff shows her condition to be peculiar. Since the time of the accident she has been unable to move any portion of her body, excepting that she has regained a partial use of her left hand and left forearm. During all of this time she has been extremely sensitive; whenever her body is moved, her arms or limbs raised, her neck raised or turned, her feet pricked slightly or touched with a pin she will shriek, cry, or give exclamations of pain; whenever the nurse would start to manipulate or move any part of her body, her arms or her limbs to apply the treatment, she would cry out and give evidence of extreme pain.
Six doctors, as experts, gave testimony; three for the plaintiff and three for the defendant. The plaintiff called the homeopathic physician who attended her; also another homeopathic physician, of twenty-three years’ experience, who saw the plaintiff four or five times within two weeks before he testified, and who examined her twice within that time; also another physician, engaged in the practice of medicine and surgery for some eleven years, who examined the plaintiff once in the presence of two homeopathic physicians. The defendant called a physician and surgeon of twenty years’ experience as a general practitioner, who examined the plaintiff twice, once in May, 1917, and again during the course of the trial; also another physician, apparently a general practitioner whose qualifications are conceded by the plaintiff, who likewise examined the plaintiff- twice, once in May, 1917, and again during the course of the trial; also another physician and surgeon, a general practitioner of forty-one years’ experience, who examined the plaintiff during the course of the trial.
*51Outside of the physical surrounding circumstances evidencing over a considerable period of time the disability of the plaintiff, the question of whether the plaintiff is permanently injured depends entirely upon the expert evidence or the opinion evidence of these doctors. All of the doctors generally agree that the body of the plaintiff is fairly well nourished, her heart, lungs, and other internal organs are practically normal, and that generally speaking there is no ■ lack of functioning except with respect to the motor -nervous system and the exaggerated functioning of the sensory nervous system. One of the experts for the plaintiff testified that although there is no apparent injury to the spinal cord, yet he thinks there is a lesion of the spinal cord; another of the experts for the plaintiff gave testimony that the reflexes of the plaintiff are delayed; that when the body of the plaintiff is turned over her arms or limbs fall and place themselves without evidence of muscular control. Another expert for the plaintiff testified that the sympathetic nervous system is healthy, but the motor nervous system is not. Generally the experts for the plaintiff state that there is a paralyzation existing of the motor nerves, and that in their opinion the plaintiff is permanently injured. The general practitioner, the expert for the plaintiff, testified that his examination of the plaintiff disclosed that the body of the plaintiff was fairly well nourished, that the lungs, heart, liver, kidneys, intestines, and female organs were normal. This doctor gave his opinion that the plaintiff was permanently injured; that the condition was what he termed symptom complex, because it involved certain physical changes; that there was here a “traumatic neurosis” due to a spinal' injury and the hysterical element, the traumatic element due to the physical and mental suffering resulting from the original injury; that there was an abnormality found in the muscles that control motion, likewise in the muscles that control sensation; that there was an abnormality in the sympathetic nervous system, which does not react in a normal way on the nerve seats. He further testified that the right arm reflex responded immediately to the blow with pain — that is, it was delayed; that the left arm reflex was not so pronounced, with no particular pain; that the knee reflexes were much increased over the normal; that the plantar reflex gave no response. The doctor further admitted, with reference to the hysteria and pain evidenced, that simulation, under the circumstances, was possible.
*52The experts "for the defendant generally agreed that the plaintiff is well fleshed and well nourished; that her skin is of a proper color; that there is no nutrition disturbance; that there is no indication of injury to the spinal cord; that her heart, lungs and other bodily functions axe normal. One testified that the reflexes were normal; another testified that the knee reflexes were normal, but the foot or plantar reflex was not. That if there- existed in fact a motor paralysis there would be a nutrition disturbance, a disturbance of the bladder; that bed sores would inevitably appear. All of the experts agree that the plaintiff did not have any bed sores. All of the defendant’s experts agree that the plaintiff in their opinion can walk; that she can use her right arm; that she is not permanently injured; that she will recover; that the hysteria evidenced is peculiarly subject to auto suggestion and the suggestions arising from her surroundings. One of these experts further testified that if the plaintiff were put in a sanatorium, he -would expect a rapid recovery; that she ought to be entirely well in six months.
The plaintiff was brought into court upon a cot. From this cot she gave her testimony, interrupted with frequent outcries of pain and suffering. Frequently she was taken from the court room during the course of her examination, crying and with evident hysteria. The defendant subjected her to a long and severe cross-examination covering forty-nine pages in the transcript. When her arm or any portion of her body, except her left fore arm and hand, were touched or handled in the court room she screamed and gave evidence of great suffering; when her head was raised to give her some water she screamed out with pain. The severe cross-examination, at least, served to exaggerate her condition and her hysteria. The demonstration visualized before the jury cannot be overlooked. This demonstration in open court naturally appealed most forcibly to the tender sympathies of the jury. It might very naturally cause them to be biased and prejudiced in the consideration of the permanency of the plaintiff’s injuries, when the .extreme physical suffering of the plaintiff in their very presence is actually seen and visualized, as opposed to the impassionate testimony of the experts and other witnesses. The defendant introduced testimony of some witnesses tending to show that the plaintiff was not injured by the fall of the brick wall, for the reason that she was not *53there at the time. The defendant also introduced the testimony of some witnesses, among them two detectives, tending to show that the’ plaintiff at one time was up in her room dusting her mattress and moving about the room; that at another time she was seen in the hall going to the toilet; that at other times she was moving about her room, and at another time she was operating a music box or phonograph when no one else but herself could be there.
The defendant contends that this action is a case of simulation; that the plaintiff was seclusively kept and watched, and no one allowed to see her except her immediate attendants and relatives, who have testified for her favorably in this case.
This matter, however, upon the record is one of fact for the jury, but it nevertheless has its importance in determining the vital question in this case concerning the permanency of the plaintiff’s injuries. In this connection it is particularly noticeable that this condition of the plaintiff, termed to be a traumatic neurosis, a motor paralysis, importing a condition of lesion of the spinal cord, as claimed by some of plaintiff’s experts, has received the attention of medical science and medical research only to the extent of applying homeopathic principles and doctrines, and of massage and electrical treatments by a nurse.
Cases of this kind are sui generis; whether under such state of facts, the injuries are permanent is a matter of speculation, under all medical authorities and in accordance with the researches of medical science. The “simulation” mentioned may be actual, that is pretended, or unconscious, that is real. In cases of this character the hysterical element, the evident pain and suffering, may be partially at least, due to the litigation, to introspection, or auto suggestion, even to suggéstion from without. Whether such simulation is evidence of permanent injuries is quite problematical. If there be a traumatic lesion in'fact, the condition may and possibly will remain permanent. Whether there is such a traumatic lesion here none of the experts know. The question whether she is permanently injured rests entirely upon the opinion of experts. Even this opinion evidence is not backed up by the application of all the means at hand of medical science and appliances which might serve to determine or concludé the question. ■
In order to sustain the verdict in this case awarded for this large sum of money, it must fairly appear that there is evidence in the rec*54ord warranting tbe finding of tbe jury that tbe plaintiff was injured permanently in tbe respect that she testified, and as ber apparent condition revealed to tbe jury at tbe time of tbe trial.
Manifestly, if tbe plaintiff would recover wholly or to a considerable degree, by tbe application of tbe best medical science and medical research, within a period of six months, or even two or three years, tbe verdict is excessive.
There is no evidence in tbe record to show that the plaintiff has received all tbe treatment and tbe best attention that medical science and medical research in this sort of an injury affords. There is evidence in tbe record, an expert opinion, that if tbe plaintiff be placed in a sanatorium,. and taken from her surroundings, a rapid recovery should occur.
This court cannot speculate concerning the permanency of plaintiff’s injuries; neither can tbe jury. In cases of this kind it is tbe duty of tbe court to exercise tbe utmost circumspection. Johnson v. Great-Northern R. Co. 107 Minn. 285, 119 N. W. 1061. Tbe future continued existence of plaintiff’s present condition, throughout her lifetime, must be shown with reasonable certainty to authorize damages based upon a finding that ber condition is permanent. Tbe permanency of plaintiff’s injuries depends upon expert opinion evidence; although given by experts, if nevertheless consists of mere opinions, creditable, more or less, in accordance with tbe experts’ information upon tbe subject-matter involved. The opinion evidence in this case is in direct conflict -concerning tbe permanency of plaintiff’s injuries. This court does not presume to weigh testimony; a conflict of opinion evidence is viewed in a different light; it differs from testimony dealing with facts. In ascertaining whether there is proof to a reasonable degree of certainty establishing tbe permanency of plaintiff’s injuries, it is tbe right, and even the duty, of this court to consider such opinion evidence at its true and proper value. Waterman v. Minneapolis, St. P. & S. Ste. M. R. Co. 26 N. D. 548, 145 N. W. 19.
Very often such opinion evidence of experts is unreliable not only on account of the method of selecting experts,- which serves to induce bias, but also for the reason that, in cases of this character, the expert, although learned and experienced, may not have had direct, or even any, experience, in the consideration thereof. In such cases such opin*55ion evidence may be even rejected as an insufficient basis for tbe verdict of the jury where the court is satisfied that reasonable certainty is outside of the possibilities of the case upon the record. Spear v. Hiles, 67 Wis. 361, 30 N. W. 511; Johnson v. Great Northern R. Co. 107 Minn. 285, 119 N. W. 1061; Baxter v. Chicago & N. W. R. Co. 104 Wis. 307, 330, 80 N. W. 644, 6 Am. Neg. Rep. 746.
The evidence, at best, shows the condition of the plaintiff to be functional; subjective, not organic. Whether there is a traumatic lesion of the spinal cord is wholly problematical. Upon this subjective condition, with no direct or positive evidence of organic trouble, a condition which under the medical authorities is subject to suggestion, either within or without, a condition from which recoveries are known, the opinion evidence of permanent injury is founded. Osler, Practice of Medicine, 7th ed. 433; Bucher v. Wisconsin C. R. Co. 139 Wis. 597, 120 N. W. 518.
This court must carefully protect the right of the jury to pass upon all true questions of fact submitted to it. This court must likewise guard against any miscarriage of justice. More and more litigants, seeking justice, must submit and be required to submit all probative facts which will enable courts of justice to render and administer impartial justice. This cannot be secured when based on speculation and conjecture. Both the jury and the court are entitled to have submitted to them all evidence within the reach of the parties or the court that will tend to remove questions of doubt and uncertainty.
With great reluctance this court deems it necessary to disturb the verdict rendered herein. The plaintiff has been seriously injured; she has suffered greatly, but it is altogether uncertain whether her injuries are permanent. The manner in which the plaintiff was cared for, the place where she was kept, the unusual physiological condition of her body, the amount of the claim that she made against the city within about thirty days from the time of the accident, the opportunities for simulation in a case of this character, the visual demonstration made before the jury, are all strong corroborative circumstances which serve to throw doubt and uncertainty upon-the expert opinion evidence of the plaintiff upon which solely the amount of the verdict rendered herein can be sustained. Although there is evidence which shows that for three years the plaintiff has remained in this condition, yet during that *56time she has received the application of medical science only through principles of homeopathy and massage. It is not in evidence that this is the only exclusive treatment which will accomplish a recovery in this case or eases of this character. It simply serves to render more speculative the opinion evidence of the plaintiff.
The interests of substantial justice require that the jurisdiction of this court and of the trial court be exercised to the end that it may be ascertained as far as medical science and the surrounding circumstances will permit, the extent and permanency of plaintiff’s injuries. If the courts do not possess this power, the power to ascertain the facts as certainly as possible, and to call in science for that purpose, with the consent of the parties, then the courts must confess the right to speculate and conjecture upon facts, based upon conjecture and speculation, which otherwise might be made more definite and certain.
The courts in this state possess an equitable discretionary power in the granting of new trials; this power may extend to the imposition of reasonable terms upon the moving party when justice so requires.
Under our statute (Comp. Laws 1913, § 7844) this court has the undoubted authority to reverse or modify the judgment or order herein. Ordinarily the granting of a new trial upon grounds of the insufficiency of the evidence to justify the verdict is within the discretion of the court. This discretion may properly be exercised by granting a new trial only upon equitable terms. The appellant seeking redress against an improper verdict, and not herself wholly free from fault in the record that produced such verdict, must subject herself to the equitable power of this court. This principle is familiarly applied in the imposition of costs or of the entire costs of a previous trial, upon the appellant, conditioned upon the right to a new trial. Swallow v. First State Bank, 35 N. D. 323, 328, 160 N. W. 137; Corbett v. Great Northern R. Co. 28 N. D. 136, 150, 148 N. W. 4; Rice v. Gashirie, 13 Cal. 53; Wolfe v. Ridley, 17 Idaho, 173, 104 Pac. 1014. See note in 20 Ann. Cas. 39; Godfrey v. Godfrey, 127 Wis. 47, 106 N. W. 814, 7 Ann. Cas. 176; 1 Hayne, New Tr. & App. p. 865, vol. 2, p. 1694; Baylies, New Trial, p. 546; Elliott, App. Proc. § 570.
Thus in the case of Brooks v. San Francisco & N. P. R. Co. 110 Cal. 173, 42 Pac. 570, where plaintiff recovered a verdict for $5,000 for personal injuries, and upon motion for new trial the trial court granted *57the same, conditioned upon the payment of $300 attorneys’ fees and expenses incurred in the motion, the court upheld the principle that a new trial may he awarded where the evidence is insufficient to support the verdict, conditioned upon compliance with equitable terms imposed.
In this state it is true that this court has held that a new trial must be granted absolutely, and there is no power to authorize a remittitur of a portion of the damages awarded, where the same are excessive through the influence of bias or prejudice upon the jury, construing § 7660, Comp. Laws 1913, subd. 5.
Carpenter v. Dickey, 26 N. D. 176, 143 N. W. 964; Waterman v. Minneapolis, St. P. & S. Ste. M. R. Co. 26 N. D. 540, 145 N. W. 19.
•However, in the latter case, supra, the court said: “In cases of excessive damages not given under the influence of passion and prejudice, it may be that the trial court possesses the inherent power, regardless of the statute, to grant a conditional order for a new trial jn the event that the plaintiff will not voluntarily remit a designated portion from the recovery.”
These cases, however, are clearly distinguishable from the situation existing in the instant case. In those cases the principle involved is the finding of the court of an existing bias or prejudice that created the excessive verdict. There is an evident reason in such cases why the court should not substitute its judgment for that which would have been the judgment of the jury if they had acted without prejudice and bias.
In this case the principle involved is the right of the trial court, and of this court acting within its appellate jurisdiction, to exercise its equitable discretion in granting a new trial as a matter of favor, where it appears that the judgment as rendered is not justified by the evidence as to the amount thereof.
Where a verdict or finding of the court is excessive upon the evidence, this court does have the power to authorize a remittitur of the excess. Aronson v. Oppegard, 16 N. D. 595, 114 N. W. 377; Ross v. Robertson, 12 N. D. 27, 94 N. W. 765; Lohr v. Honsinger, 20 N. D. 500, 128 N. W. 1035; Galvin v. Tibbs, 17 N. D. 600, 119 N. W. 39.
Among the numerous assignments of error stated by the appellant it is complained that the trial court erred in sustaining the objection of the plaintiff to the following question propounded by defendant to Dr. *58Vidal: Q. Has it been your experience, Doctor, in many of these cases that if there was a verdict for the plaintiff the party recovered and would walk?
The plaintiff asserts that Dr. Vidal did not testify as an expert, but as the attendant physician who knew plaintiff’s condition. He did, however, give opinion evidence. In view of the order of this court, it is deemed proper to pass upon this assignment: It has happened in cases of similar alleged and proven condition that recovery follows a settlement or disposition of an action maintained' therefor. Osler, Practice of Medicine, 7th ed. 433; Robinson v. Spokane Traction Co. 47 Wash. 303, 91 Pac. 473. The plaintiff asserts that this was an attempt to insert a collateral issue. The question does not disclose any such intention. It was wholly proper to fully cross-examine the doctor upon the opinion that he had given concerning the permanency or extent of plaintiff’s injuries. This opinion was necessarily based upon the experience, observation, and learning of the doctor. If his experience and learning disclosed that in cases of traumatic neurosis or paralysis a rapid recovery was had when the lawsuit therefor was settled or determined, such fact was of direct and probative value in determining the weight to be accorded to his opinion upon the instant case. The trial court therefore erred in sustaining such objection.
This, though, by itself, not deemed prejudicial error, simply discloses another corroborative circumstance that heightens the uncertainty of plaintiff’s permanent injuries. We are satisfied from the record that the jury was warranted in finding that the defendant was liable for the injuries sustained by the plaintiff and that the plaintiff was' injured. I am satisfied from the entire testimony herein that it is not reasonably certain that plaintiff’s apparent disabilities are permanent. I deem it unnecessary to determine that the damages awarded are excessive through the influence of passion or prejudice of the jury, although there are strong circumstances tending to so indicate. I am of the opinion that the evidence herein upon the whole record is insufficient to justify the amount of the verdict rendered for the reason that the permanency of plaintiff’s injuries is not proven to be reasonably certain. I am also of the opinion that the court possesses the inherent power, when occasion requires in the interest of substantial and impartial justice, to grant a conditional order for a new trial based upon the *59good faith of the litigants in earnestly endeavoring to assist the court in’ determining the extent of plaintiff’s permanent injuries.
The defendant, found by the jury legally liable for plaintiff’s injuries, and complaining of the verdict rendered, must show a willingness to assist the court in this matter. The plaintiff seeking only impartial justice and reparation in money for her damages sustained, should likewise exhibit a'willingness to assist.
Robinson, J.The plaintiff is known to the court as The Sleeping Beauty. She is an ideal of physical perfection, and yet she claims that for three years she has been reposing continuously on her bed. Her mother is the holder of a rooming house tenement on Broadway, in 'the city of Fargo. She holds it as the assignee of a lease made by the defendant to Papamanoles. The lease was made in April, 1913. Two months afterwards it was assigned to the mother. Then, towards the last days of February, 1915, and nearly two years afterwards, during a violent storm, the plaintiff had the misfortune and imprudence to go down the back stairway when some of the brick veneering fell on her shoulders, to her great injury. Her claim is that she has been permanently injured and paralyzed so that she will be always confined to her bed.
It appears beyond dispute the falling brick contused the flesh on her shoulders, but did not cut or break the skin or in any way mar her personal appearance. At the trial her body showed no signs of bed sores, though she claimed to have been continuously in bed for three years. The doctors examined her head, eyes, mouth, tongue, teeth and found everything normal. She is a well-built young woman; her arms, legs and body are normal and well nourished; her'digestion is good; her weight is normal; her muscles are natural and not shrunken. From the crown of her head to the soles of her feet she has not on her body a sear, a blemish, or a defect. Hence we call her The Sleeping Beauty.
The appeal is from a verdict and judgment for-$26,000. The trial was conducted in a manner decidedly improper. As in a theatrical play, the plaintiff was brought, into court on a cot and by her tears, screams, and appealing looks, she impressed the jurors — won their pity and commiseration. Then, it appears that counsel in his zeal for defendant forgot all prudence, and cross-examined the plaintiff and gave her an excuse for tears, and angered the jury. And the plaintiff *60was shrewd and perceptive; she knew when to weep, when to scream,, when to remember, and when to forget. The appeal was to the pity and commiseration of the jury, rather than to their deliberate judgment. If the plaintiff was in a helpless condition her testimony should have been taken by deposition and the court should not have permitted any theatrical play. The verdict must be largely for future damages, and to give the jury some basis for guessing at such damages proof was given that plaintiff was only twenty-two years old; that she had a fair prospect of forty years in bed, with the expense of attending physicians and nursing, and the loss of her earning capacity. Her three physicians testified-that in their opinion her injury was permanent. Three other physicians testified that in their opinion she was. merely shamming and that she could walk if she wanted to. To give? weight to this testimony, it was shown that plaintiff had been kept in. seclusion in the building in which she was injured and she had been kept from general observation, and not in a hospital or sanitarium. Of course such treatment and such seclusion lend color to the charge that she was acting a part and to a great extent shamming. Hence defendant offers to pay such sum of money as may be necessary to give the plaintiff the best of care and medical treatment and attendance at the best sanitariums and hospitals, and to pay her, or to the clerk for her use, such sum as the court may think just and reasonable, or about $100 a month for six months. But to that offer counsel for plaintiff do-strenuously object. By right or wrong, they have obtained a verdict and by fas or nefas they purpose to hold onto it. In argument counsel have shown that in cases like this such verdicts are often obtained by fraud and imposition on courts and jurors, and that after payment of the judgment the plaintiff quickly recovers from the alleged personal injury. In this case if the plaintiff recover $13,000, and her counsel $13,000, I think that within a year the Sleeping Beauty would be perfectly cured and the judges would have reason to feel like dolts. Certainly the verdict is so grossly excessive as to show that the jurors were affeeted by the theatrical acting and by the tears of The Sleeping Beauty.
And so far as the verdict relates to future damages, it is a mere guess, contrary to the express words of the statute. The statute is that in the trial of such a suit “damages must be awarded for such injuries. *61.-as have resulted or are certain to result.” Comp. Laws, § 7141. Now the plain words “certain to result” do not mean anything less than cer■tain to result. In the York Case, 41 N. D. 137, 171 N. W. 312, the ■court instructed the jury thus: “In passing on the damages you may •consider the injury plaintiff received or the likelihood of such injury being permanent.” We held the instruction to be directly contrary to the statute which limits damages to those certam to result in the future. But here it is contended that in the statute the word "certain" is not used in the absolute sense; that it means only such damages as. are reason•ably certain to accrue in the future; that in a case such as this recovery ■of prospective damages would be precluded if the statute required more than reasonable certainty. Now, that may be good argument to -address to the legislature on a bill to change the statute; but it is no reason for the court to modify the statute by inserting the adverb “reasonably” before the word “certain.” We should rather presume that in such cases as this, where there is no visible injury to the body and no impairment of bodily functions, a verdict for prospective damages must be a mere guess or conjecture. It cannot be proven with either •certainty or reasonable certainty, but it can be proven that in such •cases the best cure for the injury is the payment of a big verdict. Such •cures do certainly occur and show good reason for the statute that in -such a case the damage must be certain to result. Of course in ordinary eases we are well disposed to show a proper regard for verdicts found on proof of actual facts, and not on conflicting opinions. But in a case in which a $26,000 verdict is the result of a mere guess, on a trial conducted in disregard of legal- ethics and for a big contingent fee, the duty of an appellate court is to weigh the evidence and to consider the case on its merits. We know that in such eases doctors are brought from a distance and paid liberally for an opinion, and in some cases they may have a contingent interest in the verdict just the same as the attorneys. The leading doctor who testified for the plaintiff has a large bill of charges, with no hope of recovery, unless upon the verdict. The doctor was brought from Jamestown, and the court refused to allow an examination concerning the amount of his fees. The plaintiff was asked concerning the contingent fee of her attorneys and she remembered nothing of it. The opinion- testimony of the doctors amounted to nothing. They were entirely safe in testifying as they pleased.
*62The Impeachment.
'An attempt was made to impeach the plaintiff and her witnesses by showing that she and her whole family had just come from testifying in a bankruptcy case of Papamanoles. The testimony given in that case was in effect that at the expense of creditors Papamanoles had just constructed a large Riverside flat, worth some $25,000 or more; that he had conveyed the same to the mother and gone into bankruptcy. That in a creditors’ suit to avoid the conveyance the plaintiff and her family had testified that they had earned the money, gave it to the mother to pay for the flats; that the mother had kept the money in a tin box until she gave it to Papamanoles. The offer was to show that in another big fortune suit the Larson family had all come from swearing to a story incredible and preposterous.
Now it is true that the rules of evidence do change with the changing conditions of society, and when the reason of a rule changes, so should the rule itself. In former times people lived in conditions far different from those which now prevail. They grew up, lived, and died in the same neighborhood. They had more fear of false swearing, more fear of God and the devil. ■ They had no big fortune suits. Hence the method of impeaching a witness was to show his character for truth and veracity in the neighborhood where he lived. Now that method is impossible in new countries where people go about from place to place like Gypsies and do not live in any neighborhood so as to form a character; and now it has come to the point that with many people an oath has no binding force. Hence, I think that in this big fortune case it would have been proper to show the character of the testimony which was given in another big fortune suit. However, under the conceded facts and the law the plaintiff is not entitled to recover anything from the defendant. Por negligence and want of care she may be entitled to recover from her mother. Comp. Laws, § 6108. At the time of the accident the mother held the tenement under a lease by which she was bound to keep it in repair. The plaintiff was in the employ of her mother or in the house as the daughter of her mother, and, unless as the servant or the daughter of her mother, she had no right to go upon the back stairway and to be in the backyard when the bricks fell. In going down the stairs the plaintiff was a mere trespasser, unless she was there under the lease to her mother. She stood *63in the shoes of her mother and in the shoes of Papamanoles. Keegan v. G. Heileman Brewing Co. 129 Minn. 496, L.R.A.1916F, 1149, 152 N. W. 878. Defendant was under no contractual or legal obligation to guard the plaintiff and to keep the bricks from falling onto her, or to restrain her from going down the stairway at the time of a violent storm.
The complaint avers that for years prior to the accident defendant owned the tenement and that she negligently and carelessly permitted the same to become and to remain dilapidated and the walls and the brick thereof to get' out of plumb and in such condition as to create a common nuisance, and that so it remained for many years, and that plaintiff had no warning and she knew nothing of the conditions. Now the latter clause is obviously untrue. Papamanoles, the contractor and builder, the mother, and the whole Larson family had been in the tenement with full sense to observe its condition for a year and ten months. If they shut their eyes and did not observe the conditions of the building, that was their fault. The plaintiff can have no action for negligence, because it depends on some contractual relation; she can have no action for keeping a nuisance in the backyard, as her mother and employer knew of the nuisance, or was bound to abate it and to keep the building in repair. Hence, when the bricks fell she stood in the shoes of her mother.
The condition of the brick veneering was not a nuisance to any person who did not have a legal occasion to go where he might be injured.
The Veneering.
In regard to the veneering, it was not unsafe when the building was rented. From April 3, 1913, until February 3, 1915, one year and ten months, the veneering withstood all the wintry storms and blasts. Then its fall was occasioned by an unusual and violent storm which blew down an adjacent, new, and expensive Ford Motor Vehicle Building. Hence it appears that at the time of the renting, the condition of the veneering did not render the building unfit for occupancy, and the court must know that at any time it was an easy matter to give proper lateral support to the veneering. It might have been done at an expense of $5 or less by stretching and fastening some woven wire on the outside of the veneering. Now, at the time of the making of the *64lease it was well known that the tenement was an old dilapidated building; that was known to every person and it was obvious at a glance. The tenant agreed to take the building as it was and to pay only $55 a month till it should be put in repair, and then to pay $100 a month. He agreed “to keep the premises in good condition and in accordance with the existing laws and regulations and ordinances of the city of Fargo.” And it was expressly agreed that should any repairs be required on the roof, by reason of leakage or any other cause, then the lessor was to promptly repair the same. It was agreed that the lessor should furnish to the tenant materials for all necessary repairs and that he might order such material and have it charged to her account. The tenant agreed to pay for all the labor necessary to do the carpenter work, building paper, etc. The lessee, Papamanoles, was a contractor and builder. He rented the tenement for eight years, and contracted to do the work of repairing. The contract was for the lessors to furnish the materials and to permit the lessee to procure the same at the expense of the lessor, and until this was done the lessee was to pay only $55 a month, and then to pay $100 a month. Those terms of payment fairly indicate that the repairs were to be quite extensive as well as expensive." Under such a lease, if the tenant continued to occupy a dilapidated building for one year and ten months, it was his own fault. While the lessor expressly agreed to repair the roof, the lease contains not a word concerning the repair of the veneering, yet the lease does expressly show that the tenant was to do the repairs, and all the repairs, except on the roof, and the lessor was to furnish the material or to have the same charged to her. Under that agreement the tenant continued to hold possession at the time of the trial three years after the accident, and the plaintiff continued to live in the same tenement. Hence the conclusion is that the tenant agreed to do all the repairs, except on the roof. He “agreed to keep the premises in good condition and in accordance with the existing laws and regulations and ordinances of the city of Fargo.” The tenant’s failure to make repairs according to the contract, the violent wind storm, and the imprudence of plaintiff in going down the stairway during the storm, that was the proximate cause of the accident.
As I think, the law of the case is well settled by numerous authorities holding that in such a case the landlord is not liable for such an *65accident. Keegan v. G. Heileman Brewing Co. 129 Minn. 496, L.R.A. 1916B, 1149, 152 N. W. 878.
“When . . . there is no fraud or concealment as to the safe condition of the premises, and the situation is not such as to create a nuisance, the lessee takes the risk of the safe occupancy.” Ibid.
“The owner of a hotel is not liable to a guest for the fall of an awning known to be unsafe, unless he is bound by the lease to keep the same in repair.” Fellows v. Gilhuber, 82 Wis. 639, 17 L.R.A. 577, 52 N. W. 307; Moroney v. Hellings, 110 Cal. 219, 42 Pac. 560.
As I think, the law of the case is well settled in the case of Bailey v. Kelly, 93 Kan. 731, L.R.A.1916D, 1220, 145 Pac. 556.
“When the condition of property is such that it does not impair the public safety the landlord owes no duty to the public or to any member of the public to change the condition. When he comes to deal with a specific individual as a prospective tenant, he owes that individual no duty except not to entrap him by concealing facts which ordinary inspection would not reveal, and he owes no other individual any duty at all. The landlord may in perfect good conscience offer his property, such as it is, to a tenant, who takes it, such as it is, on satisfactory terms, just as the landlord and tenant did in this case. This is true although buildings may be in tumble-down condition, excavations may be unguarded, or the premises may be otherwise uninhabitable or in unsafe condition for use. The only exception is that of property devoted to public use, such as wharves, railroads, elevators, public halls, and the like. Negotiations having been fairly concluded and possession having been given to the tenant, no obligation on the part of the landlord to safeguard or to repair remains unfulfilled. After that, no obligation to repair arises during the tenancy unless the landlord has contracted to do so. This is true even although the tenant create a nuisance on the premises, dangerous to the public.”
The judgment should be reversed and the case dismissed; if not, a new trial should be granted, either absolutely, or on conditions that for six months the defendant shall pay to the plaintiff $700 a month for her own use so that she may obtain good medical treatment and nursing in hospitals and sanitariums of repute, prior to a new trial.