It is earnestly, elaborately argued in support of the application for rehearing that this court erred in reducing, contingently, the amount of the judgment from $25,000 to $15,000. As stated in the original opinion, the therein reproduced special charges 20 and 21, given at the request of the defendant (appellant), excluded as bases of recoverable damages the elements defined in those special instructions. The inquiry of excessiveness vel non in the amount of the verdict, presented by the motion for new trial, could not, under the practice always prevailing in this state, be affected by recourse to the further inquiry whether the court erred, in instructing the jury, in defining or limiting the measure or elements of recoverable damages; and so for the reason that, in civil cases, it is the unqualified duty of a jury to heed and to observe the instructions given by the court. Other jurisdictions seem to recognize and administer a rule that serves to avert reversible error in instructions by referring the jury's verdict to the law of the case which the court had erroneously mistaken in directing the jury. In civil cases, the view in this state has been that a different practice from that observed here would sanction, if not invite, a confusing, if not rebellious, conflict in the exercise of the distinct functions of the court and of the jury; the court being the only source of declarations of "the law of the case" on trial. Hence, when the question is, Is the verdict excessive in amount, and, if so, to what extent? (Gen. Acts, 1915, p. 610), the measure and elements of recoverable damages as defined by the court in instructing the jury must be the standard whereby to determine, in ruling on motion for new trial, the issues stated; for it is to be assumed, if not otherwise shown, that the jury observed its duty to heed the law expounded by the court, and to apply that law in discharging its functions in the premises. The doctrine that operates to estop an appellant to assert error where he invited *Page 353 its commission cannot be extended so as to apply in this instance, for that the particular error committed, prejudicial to appellant, lies in the trial court's action in overruling the motion for new trial, wherein complaint was made that the verdict was excessive, and not through instruction of the jury.
The brief for rehearing asserts that the opinion on original submission states that there was no evidential data showing expenses incurred for medical attention. No such statement appears in that opinion. It is therein stated that there was no data afforded upon which an award of substantial damages could have been made for the diminution or loss of earning capacity, resulting from a permanent injury.
The court has again considered the ground of the contingent reversal ordered entered, in the light of the argument in brief for appellee in support of the application for rehearing. The court remains convinced of the correctness of its original conclusion. The application for rehearing is denied.