dissenting.
The plaintiff is entitled to recover for the depreciation of the general market value of his land resulting from the construction of the transmission line. This damage may include any reasonable fears arising from the construction of the power line that would depreciate its general market value. But such fears should be limited to dangers known and reckoned with by purchasers and vendors of real estate generally. Without such a foundation the evidence is not properly admitted for the jury’s consideration. To permit the owner to testify to his personal fears, largely speculative and conjectural, without showing that the dangers upon which they were based were of such general knowledge as to affect the market value of the land is, in my *621opinion, clearly erroneous. Also, the calling of electrical engineers as witnesses who recite dangers never heard of by the purchasing public, and therefore not affecting the general market value of the land, is likewise improper. A noted text-writer states the rule as follows: “Damages alleged to flow from the taking of part of a tract are not allowed if they can have no effect upon present market value. * * * Damage to remaining land from unfounded fears is not recoverable.” 2 Nichols, Eminent Domain (2d ed.) 736.
In Illinois Power & Light Corporation v. Cooper, 322 Ill. 11, 152 N. E. 491, the court in discussing the question before us said: “Electricity is an element of great potential danger, in the control and use of which great care is necessary, and it may be that persons having no actual knowledge of the practical operation and effect of such lines heavily charged with electricity may fear the dangers which they imagine exist because of the location of the line on the property in question. If this is so, and by reason of such fear the persons affected are not willing to buy the lands on which the line is constructed, the law cannot regard the depreciation created by such a cause as resting upon any substantial basis and cannot allow any compensation on account of any claimed depreciation which is due to mere fear founded in reality upon lack of knowledge and not justified by the facts.” The majority opinion cites Kentucky Hydro-Electric Co. v. Woodard, 216 Ky. 618, 287 S. W. 985, in support of its opinion. This case adopts the rule applied in Alabama Power Co. v. Keystone Lime Co., 191 Ala. 58, 67 So. 833, as follows: “While, therefore, it is the intent of the law that all the actual damages which may naturally and proximately result to the remainder of a' man’s tract of land by reason of the condemnation of a right of way for a public purpose across it shall be paid to him, the law will not permit mere speculative elements . of damages, based upon an ill-defined fear that at some unknown and indefinite time in the future some misfortune may come to some man or beast by reason of such improvement, to enter into the *622consideration of those who, under the law, are required to fix the amount of the damages.” Also, in Kentucky Hydro-Electric Co. v. Reister, 216 Ky. 303, 287 S. W. 357, cited by the writer of the majority opinion, the court followed the Woodard case and added: “The evidence in this case was, to a large extent, the opinions of witnesses who gave but few facts upon which these opinions were based. Necessarily the extravagance and groundlessness of these opinions is reflected in the verdict.” It is noteworthy that both of these cases upon which the court relies were reversed and remanded for a new trial. And in Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 Pac. 768, the Kansas court in a very exhaustive discussion of the subject of fear as an element of damage in a condemnation for an electric power line said: “Where a right of way for the erection or maintenance of towers and wires for the transmission of electricity is condemned, the owner may recover compensation for the actual damages arising from depreciation in the value of his remaining land, caused by the presence of these things upon the right of way; but the possible fears of prospective purchasers from their presence upon the right of way cannot be made a basis on which to predicate such depreciation or affect the amount of the recovery.”
I submit that this court ought to establish a fair and dispassionate rule as to the competency of evidence on the question of fear in this type of case. To permit any and all persons to testify without foundation to speculative, conjectural, groundless and mythical dangers tends to create an orgy of fear that proper instructions cannot cure and which inevitably results in unconscionable verdicts. The difficulty arises from an unrestrained and indiscriminate admission of prejudicial evidence rather than from any errors in the instructing of the jury. In my judgment, the case should be reversed and remanded for a new trial in which the evidence of fear should be limited to those reasonable fears that affect the general market value of farm lands.
*623Another error, as grievous as the first, is contained in the court’s opinion. I refer to the requirement that a remittitur of $683 be filed in lieu of a retrial. It has long been the rule in this state that, where a verdict of a jury is clearly against the weight and reasonableness of the evidence, it will be set aside and a new trial granted. Bentley v. Hoagland, 94 Neb. 442, 143 N. W. 465; Stewart v. City of Lincoln, 114 Neb. 362, 207 N. W. 511. I agree that, where the jury has made an error the extent of which the court can with some certainty ascertain, a remittitur is a proper remedy. McKay, Munger & Wentz v. Hinman, 13 Neb. 33, 13 N. W. 15; Trester v. Pike, 60 Neb. 510, 83 N. W. 676; Ord Hardware Co. v. J. I. Case Threshing Machine Co., 83 Neb. 353, 119 N. W. 682; Braun, Ray Bros. & Finley Co. v. Roberts Construction Co., 122 Neb. 182, 239 N. W. 924. But if there is no method by which the court can rationally ascertain the extent of the excess, a remittitur cannot be required. Babbitt v. Union P. R. Co., 78 Neb. 410, 110 N. W. 1014. Under such circumstances a remittitur is nothing more than a substitution of the judgment of the court for that of the jury. The presumption is that an excessive verdict is the result of any prejudicial error that appears in the record. A remittitur therefore cannot properly be required in any case where the record discloses such error. Any other rule places the court in the position of appraising the amount of damage the error caused. A litigant gaining a verdict as a result of an appeal to passion and prejudice ought not to be permitted the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflicted upon his opponent. In almost every case similar to the one before us, the court has resorted to a remittitur to correct the errors occurring in the court below, even though there was no yardstick available by which the correctness of the remittitur could be measured. The perpetuation of an erroneous practice cannot supply the sound reason that should underlie its exercise. The usurpation of the functions of a jury by this court cannot be successfully condoned by a claim that it has acquired virtue *624because the practice has become venerable with age and dignified by constant use.
The only justification offered in the majority opinion for imposing the requirement of a remittitur is that it has been done before on many occasions, which statement is supported by a list of cases and the amount of the remittitur allowed in each. It will be noted that the promiscuous use of the doctrine of remittitur by this court is of comparatively recent vintage. The court has gone astray only in very recent years. I might add that, while the listing of these cases may give the practice the force of numbers, it adds absolutely nothing to its legal soundness.
The writer of the majority opinion attempts to anticipate the argument that the court, by requiring a remittitur, is substituting its judgment for that of the jury by suggesting that the plaintiffs can choose between a remittitur and a retrial and that this obviates any requirement for another jury trial. The words of the majority opinion are the best evidence of the fallacy of this assertion: “The court is not substituting its judgment for that of the jury, and is not depriving the plaintiffs of another jury trial. We are simply indicating that, if a verdict had been rendered in the sum of $1,200, it would probably have met the approval of this court.” It has always been my understanding that the defendant also was entitled to some consideration in the enforcement of constitutional rights. The defendant is not even placated with an option as a substitute for his constitutional right to a fair and impartial jury trial. The fact of the matter is that he is arbitrarily deprived of a jury trial and just as forcibly required to take something else in its place, and the substitute is a judgment against him, which, if rendered by the verdict of the jury, “would probably have met the approval of this court.”
The majority opinion attempts to eliminate the question of passion and prejudice as the reason for the excessive verdict by saying: “So far as the amount of the verdict returned in this case by the jury is concerned, it cannot be set aside and disregarded as being arrived at through *625passion and prejudice, for the verdict is well within the testimony returned by several of the witnesses.” Later in the opinion the following is found: “The rule of this court has been that, on appeal in an action for damages, a judgment on a verdict which the clear preponderance of the evidence shows to be excessive may be reversed unless appellee files a remittitur for the excess.” In the one statement the court in effect says there is no passion and prejudice because the evidence sustains the verdict, while in the other the court says the verdict is excessive by a clear preponderance of the evidence and imposes the requirement of a remittitur as a remedy for the jury’s error. If an opinion be no stronger than its logic, I submit that this opinion can never be accepted as authoritative.
The verdict in the instant case was excessive because of passion and prejudice superinduced by the admission of incompetent evidence of conjectural fears and dangers not affecting the general market value of the land. Any excessive judgment, not the result of error, is in law the result of passion and prejudice. The remedy is the granting of a new trial and not the requirement of a remittitur. Passion and prejudice permeate the whole trial and vitiate the entire verdict. Obviously, passion and prejudice may be quite as effective in begetting a wholly wrong verdict as to produce an excessive one. For this court to say that $683 of the verdict was the result of the passion and prejudice of the jury and that the remaining $1,200 is free from any such vice constitutes, in my judgment, a trespass into the realms of the divine.
The following cases, in addition to the Nebraska cases cited, sustain my contention that a new trial is the only proper remedy in the instant case. Rhyne v. Turley, 37 Okla. 159, 131 Pac. 695; Davis Iron Works Co. v. White, 31 Colo. 82, 71 Pac. 384; Cleveland Ry. Co. v. Mueller, 31 Ohio App. 488, 166 N. E. 391; Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 283 U. S. 520, 51 S. Ct. 501, 75 L. Ed. 1243.
This court ought to impose upon itself the same discipline-*626with reference to the preservation of constitutional guaranties that it imposes upon other departments of government which the people have likewise been obliged to trust with power. Our very form of government requires that judicial decisions be based upon rules of law and not upon the whim or caprice of the judge. A failure to adhere to and maintain this principle can only result eventually in a form of judicial oppression.