DISSENTING OPINION.
KENNISH, J.I consider the per curiam order, requiring the plaintiff, as a condition to an affirmance of the judgment, to remit two-thirds of the amount of the verdict returned on a second trial of this case, so at variance with established principles of our juris- ■ prudence that I am not disposed to allow it to pass without comment.
On the first trial the jury returned a verdict in favor of plaintiff for thirty thousand dollars. This court then said that such a verdict ‘cannot he accounted for on any other theory than passion or prejudice,” and for that reason, and that alone, the cause was reversed and remanded for a new trial. A second 'trial was had and a different jury of twelve men to whose judgment the issues were submitted, who saw the plaintiff’s helpless and incurable condition, who saw and heard the plaintiff and the many witnesses who testified, four years after the first trial and five years after the injury, returned a verdict for the same *144amount. The judge before whom the case was tried refused to hold the verdict excessive. By the per curiam order herein, considered in connection with the result o.f the first trial, this court in effect says to the plaintiff, “You shall take one-third of what two juries have said was compensation for your injuries, or nothing.” This is the inevitable consequence, for, although the per curiam opinion says to the plaintiff, “You shall take only such a sum, or a new trial,” it is obvious that a new trial is not compensation for injury, and as human life has a limited period of existence (a good part of plaintiff’s has passed since this case began) and the court goes on, the foregoing statement is not an exaggeration of the situation presented by the facts of this case. Juries may return verdicts, but if an appellate court, with equal regularity, will set them aside, it does not take a prophet to foretell what will be the end of such a contest. It is shown by the authorities cited in the opinion herein that an appellate court can well say that passion and prejudice entered into and, vitiated one verdict, but it cannot say that as to subsequent verdicts, when different juries, on the same facts, reach the same result. In view of the constitutional guaranty of the inviolate right of trial by jury in such cases as the one in hand and of the fact that the amount of the recovery is of the essence of such right, and assuming the good faith and impartial judgment of this second jury as we must, there being nothing in the record to the contrary, the question arises, indeed projects itself, Who is the final arbiter of the compensation, in a case of unliquidated .damages, the jury or an appellate court? If the latter, as the ruling in this case must be construed) then what becomes of the inviolate right of trial by jury? The only purpose of a suit is to obtain the redress prayed for, in this case compensation for the injuries sustained, and if the court assumes the right to have the last word, and in the end to substitute its *145judgment for that of an honest jury, it may well be asked, What is the function of a jury in a case at law, or rather, what is left of it?
It is provided by section 1994, Revised Statutes. 1909': “The court may award a new trial in any issue, upon good cause shown; but not more than one new trial of the same issue shall be granted to any one party.” And by section 2023, Revised Statutes 1909: ‘ ‘ Only one new trial shall be allowed to either party, except, first, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”
It was with misgivings that the court, so far as the writer was concerned, made it a condition of affirmance, in the opinion herein, that a remittitur of ten thousand dollars should be entered, and such condition was imposed only because of the fact that plaintiff, in a former trial, had entered such a remittitur and thus acknowledged such a sum as full compensation.
The case now presents these facts: Two trials have resulted in a verdict for plaintiff, each in the sum of thirty thousand dollars. The record, on the first appeal, was held free from error, except that the verdict was excessive, and on that ground alone a new trial was granted. On the second appeal the record is again held free from error, except as to the amount of the verdict, and a new trial is allowed on the same ground, unless plaintiff relinquishes two-thirds of the compensation awarded by the jury. I must confess my utter inability to harmonize such views as to the power and scope of our judicial functions with the foregoing statutes and the constitutional guaranty of the inviolability of the right to a jury trial.