Denied September 23, 1913.
On Petition for Behearing.
(134 Pac. 1191.)
Mr. Justice Mooredelivered the opinion of the court.
8. In a petition for rehearing it is contended by defendant’s counsel that the verdict, awarding the plaintiff $1,500 for the slight injury which he suffered, is so excessive that an error was committed in refusing to set aside the judgment and grant a new trial. It is argued that a clause of the amendment of Article VII, Section 3, of the Constitution of Oregon, ratified November 8, 1910, declaring that “no fact tried by a jury shall he otherwise re-examined in any court of this state, unless the court can affirmatively say that there is no evidence to support the verdict,” should be interpreted in connection with another provision of the amendment that “if, in any respect, the judgment appealed from should he changed, and the Supreme Court shall be of the opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to he entered in the same manner and with like effect as decrees are now *510entered in equity eases on appeal to the Supreme Court” (Laws 1911, p. 7), and when so construed this court should give judgment now for such a sum as the plaintiff was entitled to recover.
Section 174, L. O. L., formerly permitted a judgment to be set aside and a new trial granted on the motion of the party aggrieved for the following causes, inter alia, to wit: “ (5) Excessive damages appearing to have been given under the influence of passion, or prejudice; (6) insufficiency of the evidence to justify the verdict or other decision, or that it is against law. ’ ’ Pursuant to the provisions of that statute it had been the practice of many trial courts in Oregon, prior to the amendment of the organic law, parts of which have been quoted, to set aside judgments and grant new trials, when, from a consideration of all the evidence given at the trial of an action, it was believed the verdict was excessive. In order to inhibit such practice and to uphold verdicts, the Constitution was amended so as to preclude a court from re-examining any fact that had been tried by a jury, when the verdict returned was based on any legal evidence: Consor v. Andrew, 61 Or. 483 (123 Pac. 46); State v. Rader, 62 Or. 37 (124 Pac. 195); Forrest v. Portland Ry., L. & P. Co., 64 Or. 240 (129 Pac. 1050); Sullivan v. Wakefield, 65 Or. 528 (133 Pac. 641).
That part of Article YII of Section 3 of the fundamental law, which prohibits a court from re-examining any fact tried by a jury, when the verdict is based on legal evidence properly admitted, should be so construed as to effectuate the purposes and objects that evidently induced the amendment.
9. In construing the provisions of a state Constitution as applicable to a cause tried by a court, the chief inquiry is to ascertain, if possible, the intent of the persons who formed that part of the fundamental law, *511and also the purposes of the legal voters who adopted it, and, in order properly to determine such objects, effect should be given to all the words employed, disregarding technical rules prescribed to fix upon the sense, real meaning, or proper explanation of obscure or ambiguous terms or provisions of a written instrument, and adopting a mean between a strict and a liberal interpretation: Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513); Acme Dairy Co. v. Astoria, 49 Or. 520 (90 Pac. 153). Applying this legal principle to the part of the amended section of the organic act under consideration, it is believed that the Supreme Court, on appeal, is powerless to re-examine any fact tried by a jury, unless it, like the lower court, in passing upon a motion for a new trial, can affirmatively say there is no evidence to support the verdict.
To construe in pari materia the two clauses of the written instrument, agreed upon by the voters of Oregon as the absolute rule of action and decision, invoked by defendant’s counsel as controlling herein, would seem to render nugatory the first provision hereinbefore quoted, thereby necessarily trenching upon the rule which requires effect to be given to each word used in a Constitution. If in the trial of an action at law an error has been committed by the court, and upon appeal from the judgment the Supreme'Court from an examination of the entire testimony, the instructions, and all other matters material to the decision, can determine what conclusion should have been reached, it may disregard such errors, when substantial justice would thereby be promoted, and direct the proper verdict to be entered. It will thus be seen that the right, upon appeal, to correct a judgment rests upon an error of law committed by the trial court and not upon the re-examination of any fact tried by a jury, except in cases where the Supreme Court can affirm*512atively say there is no evidence to support the verdict. The clauses of the amended section of the Constitution referred to should not, in our opinion, be construed together in order to overturn the verdict herein. “An invulnerable verdict,” says Mr. Justice Burnett, in Forrest v. Portland Ry., L. & P. Co., 64 Or. 240 (129 Pac. 1050), “must be a conclusion of a fact by a jury regularly impaneled, as the result of a trial in which the rights of all parties in respect to the admission or exclusion of testimony have been observed in all material particulars under proper instructions of the court as to the law.”
•10. In the case at bar the verdict come within the rule thus announced, and as we cannot affirmatively say the conclusion of the jury is not supported by evidence, the amendment prohibiting the re-examination of any fact thus tried and supported necessarily modifies Section 174, subdivision 5, L. O. L., and that part of subdivision 6 which reads as follows: “Insufficiency of the evidence to justify the verdict or other decision.”
It follows that the former opinion herein is adhered to, and the petition for rehearing is denied.
Affirmed: Rehearing Denied.