On Motion for Rehearing.
We have carefully considered the able argument of counsel for the appellees asking for an affirmance in this case, but we feel that justice demands that it he 'tried ■again. The proceedings which) tools place in the trial court must have impressed the jury with a well-grounded belief that the appellant was protected against accidents of this character by liability insurance of some kind. Having reached that conclusion, it was but natural for the jury to take that fact into consideration in passing upon a material issue, especially after the court had in effect told them .that they might do so if they saw proper. Jurors know that insurance companies are paid premiums for carrying risks, and for that reason alone they would feel less hesitancy in .assessing large damages to be paid by.one who is compensated in advance for the hazard assumed. If there was any defined standard by which to measure the amount of compensatory damages for this class of injuries, the situation here presented would be different; but the margin between the minimum and the maximum of adequacy which a jury may occupy is so broad, and the lines between what is fair and what is not fair are so uncertain, that it is impossible to say how much of the damages assessed was due to the consideration of improper evidence. If any appreciable part of them were due to illegal testimony, the defendant was unjustly prejudiced by the error. That is true even though the damages allowed are not, as a matter of law, excessive. Hence the error is one which cannot be cured by a remittitur.
Counsel for the appellees insist that to reverse this judgment will in effect be to penalize the plaintiff in the suit for an error for which they were not responsible, and which they were powerless to prevent. It was counsel for the appellees, and not counsel for the appellant, who were responsible for the question that brought the improper answer of the witness. Just why it was important for the jury to know who it was that “got up” the statement to which reference was made does not appear from the record. It may be true that counsel for appellees were not responsible for the reversible error committed, but neither was counsel for the appellant. This ease is not reversed in order to penalize any one, but to prevent an injustice for which the appellant was not responsible.
We are asked to pass upon the propriety *1114of the langauge used by counsel for the ap-pellees in his closing argument to the jury. The discussion of the assignments present-, ing those questions can serve no useful purpose in a future trial, since it is practically certain that the precise language will not be repeated; and we have no right to anticipate that other language equally offensive will be used. Nor can we assume that the same character of conduct on the part of the jury which is complained of as improper will be repeated. Neither are we required to say whether or not the damages assessed are excessive, when the decision of that question is not essential to the disposition of this appeal. The testimony as to the extent of the injuries might be different upon another trial- from what it was in the last.
To discuss in detail all the assignments would involve an unnecessary extension of this opinion.
The motion for a rehearing is overruled.