dissenting. — I did not concur in the ruling announced in the opinion first filed, nor do I concur in the conclusion of the majority to adhere to the points there ruled. Upon the question of the amount of damages my own opinion is that any amount above $5,000 is manifestly excessive; but I agree with my associates in reducing the verdict from $15,000 to $10,000, and regret that they do not concur with me in its further -reduction.
Upon the third instruction given by the court, and which is affirmed in the fourth point of the opinion originally announced, I find myself wholly unable to agree with the majority. The entire instruction as given is as follows : “ 3. If the plaintiff sustained an injury as claimed in the petition, it became incumbent upon her to make use of reasonable means to effect as speedy and complete a cure as could reasonably be accomplished under all the circumstances. If the plaintiff negligently and carelessly failed to make use of the reasonable means within her power for effecting a cure, and in consequence of such neglect upon her part her injury has been enhanced, she cannof.recover for the injuries occasioned by such neglect. But, if in the selection of a physician and in the use of other means for effecting a cure she used reasonable and *438ordinary care, her damages should not be diminished, notwithstanding you may find that by a more skillful treatment her sufferings might have been alleviated and her condition improved.” • '
The evidence upon which this instruction is based tended to show that the physician who was called to and did treat the plaintiff, did not use ordinary skill or care; in other words, the jury might have found from the testimony that there was malpractice by the plaintiff’s physician tending to increase her sufferings and to a great extent causing her permanent lameness and physical disability. The plain meaning of the instruction is, then, that if the plaintiff used ordinary care in selecting her physician, she is entitled to full damages, although some of them may have been the result of the malpractice of her physicians. Mr. Justice Day, now a member of this court and concurring in the opinion heretofore filed, was then on the district court bench and tried this cause and gave the foregoing and other instructions; he concurs in the foregoing statement as to the plain meaning of the instruction.
Now, I dissent m toto from that doctrine; I cannot concur in approving it. In my opinion it is not a proper application of the rule respecting ordinary care. The damages resulting from malpractice are too remote from the negligence causing the injury, to be considered. They are not the natural and proximate consequences of the injury, and hence, should be excluded from the estimate of damages. But further than this,' the plaintiff has a cause of action against her physician for the malpractice and in which she may recover all her damages resulting therefrom. Nor is her right of action against him at all prejudiced or barred by her recovery in this action. So that plaintiff may, under the rule of the instruction, recover damages in two actions for the same injury and may have two satisfactions, while the defendant, although com*439pelled to pay damages which it never caused, yet, can have no action against the wrong-doer, to indemnity or re-imbnrse itself for the amount paid. I think, therefore, that the instruction is wrong in principle, and essentially unjust in its practical workings, and for the error in giving it the judgment ought to be
Reversed.
Beck, Ch. J.,dissenting. — I earnestly dissent from the conclusion of my brothers interfering with the j udgment in this case. ' In my opinion this court is not justified upon principle or precedent in requiring the plaintiff to remit any portion of the judgment. I do not deny the right of this court and the duty, in a proper case, to set aside judgments when verdicts are excessive or where it appears that the amount thereof could only have been arrived at by the jury through prejudice or passion. But in my opinion this is not a proper case for the exercise of this power. ' On the other hand, I deny the right and authority of this court to usurp the power of a jury and, upon the mere opinion, judgment and feelings of its judges, fix the sum in which a plaintiff may recover. It is no part of our duty to assess damages in cases of this kind. That duty the law confers upon juries. Neither do I believe that this court is any better qualified to determine what amount in a case of personal injury the plaintiff ought to recover, than are juries. Attainments in the law aid not at all in the discharge of such a duty, and I have no. reason to suppose that we possess such experience in matters of this kind, or are so peculiarly endowed by nature that our judgments upon such questions are more unerring than those of jurors.
While I recognize the fact that jurors often err in their verdicts, both as to the amount allowed and as to the rights of the party recovering, 1 am also powerfully conscious that judges too are fallible and burdened with the *440infirmities of human nature. To escape errors and defects in the administration of the law I would not, because those upon whom certain duties pertaining thereto are imposed sometimes err in such cases, fly for relief to others not clothed with such judicial functions. If defects in the administration of the law cannot be corrected in a legal way the hardships resulting therefrom must be endured and attributed to the imperfection of our jurisprudence and the fallibility of human nature and reason. To escape the occasional errors of jurors in assessing the amounts of their verdicts I would not authorize courts, at their discretion, to increase or diminish them.
Certain Illinois decisions are cited in the opinion of my brothers upon this branch of the case, to sustain their ruling. In my opinion they fall far short of it. A moment’s consideration of the law as recognized in that State and the cases cited in this connection will demonstrate the truth of my position. The rule governing the courts of Illinois in setting aside verdicts for excessive damages was announced by Trot, J., in these words : “ The amount of recovery in actions for personal injuries rests so much in the discretion of jurors, that courts will not disturb their verdicts on the ground that the damages are excessive unless it is manifest they have been governed by passion, partiality or corruption; and to draw such conclusion if is not enough that the damages in the opinion of the court are too high, or that a less amount would have been satisfaction for the injury. It must be apparent at first blush that the damages are glaringly excessive.” McNamara, v. King, 2 Gilm. 432.
I am not advised that this rule has been doubted, modified, or discarded by later decisions of the Illinois supreme court. The cases cited in the opinion to which I am now expressing my dissent, certainly have not that effect., Neither do they support the position of my brothers that the verdict in this case is excessive. In Decatur v. Fisher, *44153 Ill. 407, a verdict of $3,000 was set aside as excessive. The plaintiff was a young girl at service upon wages of $100 per year. The following extracts from the opinion will exhibit clearly the view of the law and the facts taken by the court: “ In estimating damages for nonfeasance, the measure should be compensatory only, and to approximate that, the character of the injury, together with the pain and suffering of the party, the expenses incurred in efforts to cure, loss of time, and elements of a kindred nature, are to be considered. The pain in this case was not shown to be very severe, for, on the day of the injury, she rode nine miles in a spring wagon, without any support to her back, and the next day rode two miles on horseback. It is true she complained on this occasion and she was, doubtless, a sufferer fr'om the injury.” It appears from the opinion that the injury'relied upon by plaintiff to justify the recovery was prolapsus uteri, which, it was claimed, was caused by the fall, the foundation of the action. But the court say: “We do not think the evidence establishes this as the consequence of the fall.” But the court remarks that, even if it be admitted this disease was the result of plaintiff’s injury, it was not shown to be incurable; “ on the contrary, the inference from the testimony of her mother is irresistible, that it is curable * * * .” “ It may occasion annoyance for some time and prevent her enjoying rides on horseback, or engaging in hard work requiring an upright position.” In this case the injury was absolutely trifling, certainly so as to its effects and very moderate as to pain and suffering. She rode nine miles in a spring wagon on the day of her injury and two miles on horseback the next day. No permanent injury, or disability lasting for even a day, was shown. The pain immediately after the injury, when it was certainly more severe, did not prevent her performing the ordinary duties of girls of her age, for if she could ride nine miles in a wagon and two miles on horseback *442she could do ordinary “housework.” The court, under these circumstances, held that the verdict upon its face bore evidence of partiality and prejudice, and for that reason ordered a new trial.
In Chicago v. Langlass et ux., 52 Ill. 256, the judgment was set aside on the ground that the court concluded the jury allowed exemplary damages. The verdict was for $4,750, and the court held it was not a case in which vindictive damages could be allowed. The following extract from the opinion gives both the facts and the law of the ease as found and ruled by the court: “We, after a careful examination of the evidence, are not prepared to say that Mrs. Langlass (the party sustaining the injury) is permanently disabled, or if so, to any considerable extent. She must have suifered much pain from erysipelas, and, perhaps, from nervous derangement consequent upon the fall, and if occasioned by the negligence of the officers of the city in grading and improving the streets, then she should be permitted to recover reasonable compensation, sufficient to cover all expenses attending her sickness, and for loss of time and for pain from the injury and any permanent injury.”
” In Chicago v. Martvn, 49 111. 241, cited in the foregoing majority opinion, it is ruled that vindictive or exemplary damages will only be allowed when gross fraud, malice or oppression appear, and that in cases for mere negligence of a municipal corporation in failing to keep its streets in repair, such damages cannot be recovered. The case has no application whatever to the point under consideration.
In my judgment there cannot arise even a suspicion upon the record in this case that the verdict was the result of passion or prejudice, or that it was any thing else than the result of the honest, calm and intelligent exercise of judgment by the jury. The jury had before them a woman in the prime of life, who before had lived in ac*443tivity and usefulness, rendered, by the injuries, a helpless cripple for life, a burden to herself and friends. The evidence showed that she had endured months of the most intense and fearful suffering, and the remainder of her life would be made up of pain and sorrow on account of these injuries. Now, is there a living man or woman that would, as a compensation for such injuries, accept ten times the amount of the verdict? No one possessing reason would do so. Under these circumstances my brothers say that the verdict is excessive. By what rule do they measure it ? They do not pretend that as mere compensation it is too great; but that, in their opinión, a less sum would be in accordance with justice. Now, whose judgment upon this question is most likely to be correct, my brothers’ or the jury’s ? The jury had all the evidence before them. We do not. They saw the plaintiff and were better able to determine the extent of her injuries than we are, taking the evidence as it appears in the record and without having the plaintiff before us. Again, are my brothers’ notions about abstract justice and the precise measure of damages that will be equitable between the parties, any more reliable or likely to be more correct than those of the jury ? I know of no reason why they should be.
Another fact, which under the rules of the law the jury were authorized to consider, may be referred to here. The bad condition of the street producing the injuries suffered by plaintiff, resulted from the gross neglect of the city. The obstruction had been upon the street for days, if not weeks. Many citizens' had fallen there; in fact, it is shown that a city officer had fallen upon the ice. So great was the obstruction that those passing along had to avoid the spot by crossing the street.
The conflicting views of this court, as expressed in these opinions, is a conclusive argument establishing the utter unfitness of judges to determine the question of fact as to *444the true amount which should be awarded plaintiff as compensation for her injuries. I think the amount of the verdict, $15,000, is not too great. Miller and Day, JJ., think $10,000 is the exact sum she ought to recover, while Cole, J., is equally assured that the precise measure of justice to plaintiff is found in $5,000. After this exhibition of the uncertainties in attaining justice by the judgment of a court, judges should cease to reflect upon the capacities and intentions of jurors, and should be humbly silent in view of compromise verdicts and of verdicts that do not exactly accord in amount with their ideas of right. They should be led to doubt whether the inherent difficulties attending the act of computing the precise sum which shall be compensation for personal injuries, can be overcome by judges, and to conclude that the duty can be better performed by a jury to whom it is intrusted by the law. I am constrained to believe that in the opinion of courts and of the profession, not to say'of all intelligent men, the unanimous verdict of the jury in this case will command more respect and be regarded as a nearer approximation to justice than the divided and conflicting opinion of this court as to the measure of plaintiff’s damage.
I may refer to facts, not wholly appearing in this record, to further illustrate the error of my brothers’ conclusions.
The case was tried before Justice Day, who, at the time, occupied the bench of the third district. He states that the jury sitting in the case was of unusual intelligence, and composed of the best men of the county. The defense made no serious resistance to the amount of recovery, in fact rather left it to be inferred by court and jury that if plaintiff recovered at all the amount claimed by her would not be unreasonable. That the jury discharged their duty honestly, intelligently and well, cannot be doubted. That they were as capable of determining the just and legal compensation to which plaintiff is entitled as this court is, *445no one will deny. But this court sets aside the legally rendered verdict upon the ground of its want of justice. Its conclusion is not warranted by facts and in my opinion is contrary to law. And for this reason I dissent therefrom.
Reversed.