dissenting.
This case is the reciprocal of DeJulio v. Foster, Wyo., 715 P.2d 182 (1986), and Jones v. Sheridan County School District No. 2, Wyo., 731 P.2d 29 (1987), and the corollary of England v. Simmons, Wyo., 728 P.2d 1137 (1986). It directly invokes issues considered by this court in Short v. Spring Creek Ranch, Inc., Wyo., 731 P.2d 1195 (1987). Whether favoring plaintiff or defendant, I think that the court here is again wrong.
The trial evidence revealed that plaintiff truck driver was driving over the speed limit, had been drinking, was over hours in time for continued driving by interstate regulation, started to pass a vehicle without sounding her horn on the divided four-lane highway, then without vehicular contact moved left from the passing lane, lost control of her vehicle in the median, crossed back over the road, jack-knifed and rolled the truck-trailer unit off the outside lane and parking median, and was injured upon falling to the ground when she jumped from the truck cab window instead of climbing down.
This court affirms a judgment in her favor for $425,000 from a resulting back injury. I disagree and consequently dissent.
As a firm believer in the jury system, this writer is again unfortunately called to remind the members of this court that the danger to the jury system from society and its representative members of the legislature, arises from uncontrolled litigative excesses, unjustified in the logic of the law of tort or by the facts of the case. There is an abrogation of judicial responsibility which is uniformly resulting nationwide in attacks on the jury system. The vitality and suitability of the jury system remains unchallenged, but it is the timidity of the judiciary to control excesses that is being called into account.
« * * * [g]ome 0f ⅛6 current vogue for complaining about overuse of the courts and of procedural excesses masks an important, value-laden debate about individual rights and the role of the judiciary in this society. In the current surge of *930concern about procedural innovation, we must sort out which suggestions are put forth in an effort to limit judicial power and which are made in an effort to enhance the judicial function.” Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U.Chi.L.Rev. 494, 556 (1986).
“ * * * [Cjaught in the crossfire, legislators and the public seem increasingly determined to take steps to control not only a growing insurance crisis, but what they see as a tort system out of control, collapsing under the collective weight of endless lawsuits.” Greengard, Is the Tort System Heading for a Crash?, 14 American Bar Association Barrister 9, 38 (1987).1
How did this speeding, probably sleepy, drinking truck driver get to the $425,000 judgment against the college student transporting a car for a west-coast transporter who, if anything, pulled across the division between the two driving lanes for not more than a couple of feet, as the truck driver, in excess speed without statutorily required horn-sounding compliance, started to pass, panicked, jerked to the left, drove off the paved surface into the median, lost control, crossed all lanes and piled up the truck-tractor rig off the right in the barrow pit area?
Excluding strategy and performance of trial counsel constituting the sine qua non of trial capability not incomparable to success in other economic and academic endeavors of our society, we can observe another syllogistic answer, insurance-insurance-insurance. This status is also not unrelated to the criminal case trial where determination by the jury is essentially directed not by proof of guilt but from atmosphere of prejudice by indications of defendant’s bad character.
Fundamental to our appellate system and the impact of our decisions is that who wins and who loses in the individual cases ordinarily is socially insignificant except to the participant, but the contribution of this court to the body of the law and the structure of the judicial system in our society is vitally important as a matter of precedent. We not only decide cases, but we alter the intrinsic structure of society. To be repetitive, in this case, as in many others, unless the judiciary protects the reliability and justification for the jury system, then society will substitute other processes. No-fault auto insurance is a potent example of a perceived justice-system failure. Fortunately, that bad idea for auto insurance cases is on the wane, but the theory is now reappearing in strident fact in other areas of injury recovery, such as product liability. It has been succinctly stated in Miller v. Mayberry, Ind., 506 N.E.2d 7 (1987), that “Qjudges should regard themselves as responsible for the rules they have erected.”
“The basic function of the Supreme Court has been and ought to be the maintenance of the rule of law in our society, the rejection of arbitrariness, the prevention of agglomeration of power and the avoidance of corruption.” American Law Institute, Remarks, Meeting May 13, 1986.
As far as the verdict was concerned in the standard of my views, DeJulio v. Foster, supra, and Jones v. Sheridan School District No. 2, supra, I would simply say that it was both excessive and unsupported by the evidence in either liability or amount of damages.2 This court, if it is to justify *931its constitutional responsibilities, should support and provide reasoned leadership so that a jury verdict, good or bad, that does not provide substantial justice will not be approved in result or in jurisprudence.3 Philosophy of rational justice aside, the specific issues addressed in appeal include: (1) evidence of insurance, especially whose insurance; (2) consumption of alcohol; (3) failure to sound horn; (4) hearsay; (5) foundation for expert witness regarding economic loss; (6) proximate cause; (7) denial of new trial.
The actual unknowns of this case, after a rather rigorous factual review of the trial evidence, is, who got sleepy or was asleep? The car driver, causing him to weave or pull out a couple of feet into the center lane, or the truck driver who had at least six feet of clear paving to the left to be crossed before she lost control at the edge of the center median, or both? The nighttime event of dangerous truck drivers who are overtime in driving and sleepy, no less than the student driving continuously headed back to school, are not an unknown phenomenon of danger on Wyoming’s high-speed, low-interest rural highways.
INSURANCE
The majority has labored mightily but without persuasive precedent or logic to justify this case’s attributes of the determination of liability by the infusion of insurance. It is simply creating a fiction to accommodate a desired result to announce that a limiting instruction seals liability determination from the agency issue. Not only do judges not manage that cerebral function completely, but also neither do laymen jurors. Prejudice and emotion more immediately determine humanistic belief than do reason and rational logic. Insurance justification for a share-the-wealth cerebral conclusion as an unintended contribution to the causative decision is inevitably effectuated among the multitude of cases and the variety of discourse material. See Annot., 4 A.L.R.2d 761 (1985), Admissibility of evidence and propriety and effect of questions, statements, comments, etc., tending to show that defendant in personal injury or death action carries liability insurance, and Annot., 40 A.L.R.Fed. 541 (1978), Admissibility, after enactment of Rule 411, Federal Rules of Evidence, of evidence of liability insurance in negligence actions. The fleeting reference in Elite Cleaners & Tailors, Inc. v. Gentry, Wyo., 510 P.2d 784 (1973) cannot be compared to the direct infusion here.
In another context, the subject was succinctly addressed by Justice Frankfurter in Watts v. State of Indiana, 338 U.S. 49, 52, 69 S.Ct. 1347, 1349, 93 L.Ed. 1801 (1949): “[TJhis court should not be ignorant as judges of what we know as men,” or, as supplemented by the monumental critique of right to counsel by Professor Yale Kamisar, 61 Mich.L.Rev. 220, 282 (1962), as he further remarked, “I ask even less, I ask only that the court not be ignorant as judges of what they know as lawyers.”
Psychologists casually assure us that insurance is an assumptive contribution in jury contemplation in most tort cases. The augmented stimuli is the ignored fact that whether or not the jury may, sub rosa, generally assume insurance, has minor de-*932cisional force in a mutual decision, compared to the result when that judicially approved and factually established status is created to be characterized as “You have the knife, here is the melon.” Assumptive guesses compared to deliberately infused facts are not the same. The limiting instruction afforded in this case only magnifies the causative factoring of the collective mind and the combined attitude of the jury. To say otherwise is to ignore reality in favor of fancy.
The limited benefit, if not the augmenting factor of the limiting instruction,4 has frequently been considered in the emotionally effectuating circumstance criteria by the United States Supreme Court. Justice Brennan, in Bruton v. United States, 391 U.S. 123, 129, 88 S.Ct. 1620, 1624, 20 L.Ed.2d 476 (1968) stated:
“ ‘The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants * * ” Quoting from Delli Paoli v. United States, 352 U.S. 232, 247, 77 S.Ct. 294, 302, 1 L.Ed.2d 278 (1957).
Justice Jackson, in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) stated:
“ * * * The naive assumption that prejudicial effects can be overcome by instructions to the jury * * * all practicing lawyers know to be unmitigated fiction.”
As further indicated in Bruton, “[a] jury cannot ‘segregate evidence into separate intellectual boxes * * Bruton v. United States, supra, 391 U.S. at 131, 88 S.Ct. at 1625.
Judge Learned Hand, in considering the limiting instruction observed in Nash v. United States, 54 F.2d 1006, 1007 (2nd Cir.1932), wrote
“ * * * In effect, however, the rule [limiting instruction] probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else.”
It is recognized that sometimes the limiting instruction is a choice of necessity in the orderly processing of trial evidence Bruton v. United States, supra; 8 Wigmore, Evidence § 2272 (Chadboum rev. 1981), but the availability and use of the limiting instruction when the evidentiary benefit is de minimis compared to the prejudice, cannot be justified as a necessity. The subject is considered in a current United States Supreme Court case by its newest member, Justice Scalia:
“The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Richardson v. Marsh, — U.S. -, -, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987).
From this court, compare Schmunk v. State, Wyo., 714 P.2d 724 (1986) with Hursh Agency, Inc. v. Wigwam Homes, Inc., Wyo., 664 P.2d 27 (1983). Mr. Justice Holmes said many years ago in Irwin v. Gavit, 268 U.S. 161, 168, 45 S.Ct. 475, 476, 69 L.Ed. 897 (1925):
“ * * * Neither are we troubled by the question where to draw the line. That is the question in pretty much everything worth arguing in the law.”
I have no difficulty in discerning that the introduction of insurance in this case afforded nothing of decisional value except the prejudicial result of plaintiff recovery without validating evidentiary support. The actual and unquestioned relationship *933of the parties was not attenuated by the circumstance that a federal agency required permissive drivers to be additional insureds. No desirable accommodation is demonstrated meriting prejudicial introduction of the insurance issue. Ben M. Hogan Co., Inc. v. Nichols, 254 Ark. 771, 496 S.W.2d 404 (1973).
SOUNDING HORN
I am severely perplexed by the conclusion of this court on the statutory requirement to sound the horn, in the face of the very recent decision in England v. Simmons, supra, 728 P.2d 1137. Confusion becomes anarchy if one additionally infuses into this discussion the per-se and evidence-of-negligence dichotomy shrilly disputed in Short v. Spring Creek Ranch, Inc., supra, 731 P.2d 1195.
I have read and re-read the record without achieving any idea why plaintiff drove off the road, except that she was nearly asleep or had just been asleep, but failure to sound the horn as warning, if the vehicle in front did in fact move into her passing lane, demonstrates a violation of a national driving standard as enfolded into the Wyoming traffic code. Before plaintiff drove off the road, considering the distance and space available for continued and unhampered travel, she could have at least sounded her horn. Denial of a theory-of-the-case instruction for jury resolution in inexplicable. The statutory obligation to equip a vehicle with a horn and to use it exists for a purpose. I find this court again acting as a legislature in non-application of statutes as was philosophically considered in Duffy v. State, Wyo., 730 P.2d 754, 761 (1986), Urbigkit, J., dissenting. The statutes disregarded in this case are:
Section 31-5-203, W.S.1977:
“(a) The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions and special rules hereinafter stated:
“(i) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle; “(ii) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.”
Section 31-5-952(a), W.S.1977:
“Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred (200) feet, but no horn or other warning device shall emit an unreasonably loud or harsh sound or a whistle. The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use the horn when upon a highway.”
We now confuse the theory-of-the-case anarchy by the denial of that instruction. No more justified is the denial of any jury instruction on consumption of alcohol involving a couple of beers in Rock Springs, some 240 miles west of the accident scene.
I do not find judicial discretion, Martin v. State, Wyo., 720 P.2d 894 (1986), to be accommodated by failure to instruct in regard to a theory of the case, contending violation of a state statute. I am not satisfied by the denial in this case premised on a pretrial process. In the trial proceedings and evidentiary presentation, failure to sound the horn and alcohol consumption were pervasive and singular issues.
In this regard, the court’s opinion lacks rationality. Under even a per-se standard for violation of a statute, it is the duty of the jury to apply the standard afforded by a statutory requirement to the conduct for a proximate-cause determination. It is said in federal regulation and state statute not to drink and drive. Proximate cause in later inattention may rationally be discerned as a jury fact. The jury and not the judge should have used the statutory standards for conduct to determine whether proximate cause existed. It is incompre*934hensible that the theory-of-the-case instruction involving statutory violations should not have been given under the facts of this truck-wreck case.
Actually, the court failed to instruct on either the state statute or a federal regulation. This court’s justification of those omissions is not only factually unpersuasive but rationally illogical. Clarke’s proposed Instruction A not only fairly addressed the theory of the case but also succinctly included the essence of the statute, and when that fair instruction was denied, then appellant was clearly entitled to the stated statute instruction as an alternative. Trial proceedings are not strategy gamesmanship between counsel and the court, but conversely should be the desire for justice in the search for truth. Processes exist only to afford an organizational basis to reach that defined goal.
Furthermore, this court again is wrong to reject the instruction as unsupported by substantial evidence. This is a “lost control on passing without sounding horn” case. What more need be said about the applicability of the state statute relating to the sounding of the horn on passing a vehicle? It is absurd enough to question whether the court knows why horns are provided on motor vehicles. Conceptually it is supposed to be to warn of presence and to avoid an accidental collision.
Responding to the conclusion that specific statutory instruction need not be given after the substantive instruction was rejected, this court incorrectly analyzes the record and trial events. The pretrial order provided:
“ * * * Not later than 20 days prior to trial, counsel will have served upon the Court and other counsel, a complete proposed set of instructions, and will, within 10 days following service of instructions filed by other counsel, serve on the Court and counsel their written objections thereto, if any. Counsel may propose additional instructions at the time of trial, if necessitated by the evidence, and if the same could not have been reasonably anticipated(Emphasis added).
Proposed Instruction A was duly filed and clearly justified by the discussion of this court in Campbell v. W.S. Hatch Co., Wyo., 622 P.2d 944 (1981) as supporting authority in instruction presentation, and if the court then chose to ignore Hatch and its reasoning, then the pervasive alternative of the pretrial order would clearly apply, permitting an instruction that simply restated the statute. Instruction A had been supplied and filed with the court on February 25, 1986. In denial of proposed Instruction B as a substitute for A, the court both ignored the pretrial order and rejected any instruction on perhaps the most important aspect of appellant's theory of the case. “If Ms. Yandermeer had sounded her horn rather than driving off the road, this accident where she ‘wrapped up her truck’ would not have happened.” It is not my province to determine what the jury under the circumstances would have done, but only that they should have accurately been furnished the issues presented by the law of the road and the facts of the accident. It is not accurate to state that appellant failed to adhere to the pretrial order on a requested horn-sounding instruction. Furthermore, I would submit that before or as one dodges to miss a passed vehicle which appears to encroach, minimum driving intelligence requires a horn-sounding warning, particularly so where, as here, the statute does exist. Appellant was entitled to an instruction as requested. In the nature of the science of physics, even if Clarke encroached a couple of feet, the Vandermeer truck did not cross over the remaining space and leave the paved road surface in anything like a few feet. If, in accord with the evidence, the passing net speed differential of about 10 miles per hour or 8.8 feet per second, the truck then traveling something in excess of 90 feet per second, would have traveled several seconds and a couple of hundred feet in the swerve and lost control movement to leave the road as it did.
I am no more satisfied with the attendant rejection of the 49 C.F.R. § 392.5 instruction prohibiting consumption of alcohol beverages by a truck driver. The issue *935presented was not necessarily only “intoxication,” addressed by the given instruction, but also the attendant factors for the driver of drowsiness and slowed reaction, intrinsically considered in federal regulation adoption for application to interstate truck drivers. Any person who is speeding and over hours in driving time is empirically more at risk if he or she has previously consumed alcohol. The jury was entitled to know about the violation of law with which appellee’s driving was encumbered. It is axiomatic in a multitude of Wyoming cases that a party is entitled to an instruction involving theory of the case. Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Taylor v. Stockwell, 22 Wyo. 492, 146 P. 743, reh. denied 147 P. 328 (1916).
HEARSAY
I would concur with the majority that the hearsay was improperly introduced into evidence. Unfortunately, the strands, like the weaving of a fiber basket, are neither insignificant nor harmless in result. Since the case involved the direct dispute as to whether defendant even crossed the highway dividing line as the motivating factor of plaintiff’s driving off the highway, the introduction of inadmissible hearsay to prop up plaintiff’s testimony was certainly not harmless. In reality, we do not even know whether the hearsay was first-, second- or third-party, or if essentially motivated by clannish desire to protect one’s own as a truck driver. The serious detriment of trial by nonchallengeable hearsay evidence is most clearly presented. Under the circumstances of the minimal evidence here of defendant’s negligence, it could hardly be considered harmless. The effort of appellant to exclude, and the continued pretrial to trial campaign of appellee to introduce, witnessed the reasoned decisions of the litigants that introduction would not be “harmless.”
Furthermore, neither party actually briefed the issue of harmless error as to the admissibility of the contested hearsay statement. In application this was not “an error which is trivial or formal, or merely academic and not prejudicial to the substantial rights of the party signing it and in no way affected the final outcome of the case.” Black’s Law Dictionary, 646 (6th ed. 1979). Conversely, as a matter of pure logic and fact, if this hearsay were but “harmless” then even more reason for the horn-sounding instruction existed. If plaintiff knew Clarke was a “weaver,” then even more reason for a horn warning could be found by the jury.
SUFFICIENCY OF THE EVIDENCE
Obvious beyond question, Vandermeer was negligent. The question is whether proximate cause absolves her from responsibility for her own injuries. Physically, whatever happened to her, she did to herself. This is not a country road, but an interstate highway with two driving lanes of approximately 13 feet each.5 Traveling substantially in excess of the speed limit, driving long hours and at night, plaintiff was unable to successfully pass one passenger car which she said “moved into her lane two feet.” In affirming, this court now strikes beyond incredibility to incongruity.
Do I discern a rule that the faster you go, the more rights on the road you have? In applying the rule stated in the very first case decided by the Wyoming Supreme Court in Western Union Telegraph Company v. Monseau, 1 Wyo. 17, 19 (1870):
“If there is reason to suppose that the jury have mistaken or misunderstood the *936evidence, or that they have been carried away by fashion or prejudice, and thereby have done evident injustice to either party, it is the duty of the court to set aside their verdict and grant a new trial,”
I find cause for reversal and would remand for a new trial.
. As quoted in Greengard, supra at 38, University of Wisconsin Law Professor Galanter has said:
" ‘As a society, we often look at all the problems associated with litigation, but we rarely make it a point to look at the benefits of it. We cannot forget that litigation is a way of holding people to some kind of accountability to public standards, a way to keep things operating smoothly and safely. If we completely lose sight of that fact, it will be all our loss.”’
. My perception is not especially different from the observation made by the trial court in opinion letter ruling on the motion for new trial and motion notwithstanding the verdict, wherein he stated:
"The Court was troubled, however, by the argument of defendants that 'the jury’s verdict is not supported by sufficient evidence, fails to administer substantial justice to the parties, and represents a miscarriage of justice.’ As expressed to counsel at the time of the oral hearing, the Court does have a general feeling *931of ‘uneasiness,’ which I believe I described more as a ‘gut feeling,’ that perhaps the verdict failed to administer substantial justice to the parties.”
The trial court’s general feeling of uneasiness was justified, and therefore I would not agree with the last sentence of the paragraph and a prior sentence which defines the basis for this dissent:
"A review of the evidence as I recall it, however, convinces me that there was substantial and competent evidence from which the jury’s findings, set forth above, could be made.” "The Court does not believe that errors of law occurred which prejudice the defendant’s right to a fair trial, either in the admission of evidence or the refusal to give instructions.”
. See recommendation of mid-year meeting of the American Bar Association, Report No. 123B(2):
“There should be no ceilings on pain and suffering damages, but instead trial and appellate courts should make greater use of the power of remittitur or additur with reference to verdicts which are either so excessive or inadequate as to be clearly disproportionate to community expectations by setting aside such verdicts unless the affected parties agree to the modification.”
. "It has been suggested that the limiting instruction actually compounds the jury’s difficulty in disregarding the inadmissible hearsay. See Broeder, The University of Chicago Jury Project, 38 Neb.L.Rev. 744, 753-755 (1959).” Bruton v. United States, 391 U.S. 123, 130, n. 4, 88 S.Ct. 1620, 1624-25, n. 4, 20 L.Ed.2d 476 (1968).
. The highway patrol described configuration of the highway at the point of accident from center to outside barrow pit as berm from dirt median area 21 inches, outside of lane driving surface 18 inches, passing lane 13 feet, driving lane 12 feet 6 inches, emergency parking lane 7 feet, and finally outside berm to barrow pit 18 inches. There was no evidence of vehicle braking at the scene. The first scuff marks made by the truck were where it had come back onto the paving when crossing the inside berm and then traveling to where it jack-knifed off the road a distance of 224 feet. The truck was eight feet in width. Appellee told the investigating officer that she was going about 64 miles per hour or 9 miles above the speed limit for the area. At the legal speed limit of 55 miles per hour, she would never have passed the slower traveling automobile which was traveling at a rate considerably closer to the maximum speed limit.