(dissenting) : While I think defendant was fairly entitled to have the jury instructed that the mere occurrence of the accident was not of itself sufficient to establish negligence on the part of the defendant, I concur in what is said in the opinion in respect to that matter and I would not order a new trial for the failure to give the instruction. I think, too, that some of the special questions were not fairly answered and that defendant was entitled to have them set aside. However, the error, in my opinion, was not so prejudicial as to warrant a reversal. I am not prepared to say that the amount of the verdict is so excessive as to justify interference by this court, but the size of the yerdict, in my opinion, justifies a careful consideration of the manner in which it was .arrived at and I am unable to discover any reason for distinguishing between the facts in this case and those in Johnson v. Husband, 22 Kan. 277, where the verdict was held to be a quotient verdict and a new trial was ordered. In that case, as in this, and in every case where the question has arisen, some of the jurors have denied that it was formally agreed before the separate amounts were added and divided that the quotient should be the verdict. It was held, however, in the Husband case that because four of the jurors had that understanding, the verdict should be set aside. Here there were two, at least, that had that understanding, and besides, there is no dispute that the matter of a quotient verdict was discussed, and it is not denied that one of the jurors stated that if the exact *160amount of the quotient wag returned as a verdict it would not stand, and for that reason a slight reduction was made. The vice of a quotient verdict lies in the fact that it does not express a fair compromise of the separate views of the individual jurors; it affords an opportunity for one or two jurors to control the amount of the verdict by voting for an unreasonably large or an absurdly small sum. Upon the whole record I think a new trial should be ordered, but my dissent is confined to that part of the opinion which holds that the verdict is not a quotient verdict.
Burch, J., concurs in the dissent.