A rehearing was granted in this case upon petitions by both appellant and respondent. On rehearing it is contended by the respondent that under the Federal Employers' Liability Act this court is without authority or jurisdiction to interfere in the matter of damages or to reduce the same as excessive. This contention seems to be predicated upon a comparison between the jurisdiction and power of the Supreme Court of the United States and this court, and that since the Supreme Court of the United States will not consider the alleged excessive character of a verdict, therefore this court should not do so in dealing with a case arising under the federal act.
It is true that a state court hearing a case under the Federal Employers' Liability Act is bound by the terms of that act, as construed by the Supreme Court of the United States, in so far as it relates to the substantive law. On the other hand the Supreme Court has uniformly held that in matters of practice and procedure the state courts may proceed in accordance with the local rules and practice of the state.
In Minneapolis St. L. R. Co. v. Bombolis, 241 U.S. 211,36 Sup. Ct. 595, 60 L. ed. 961, Ann. Cas. 1916E, 505, L.R.A. 1917A, 86, Chief Justice White, in holding that the Seventh Amendment to the Federal Constitution has no application to a state court in a case arising under the Federal Employers' Liability Act, said:
"And it was, of course, presumably an appreciation of the principles so thoroughly settled which caused Congress, in *Page 422 the enactment of the Employers' Liability Act, to clearly contemplate the existence of a concurrent power and duty of both Federal and state courts to administer the rights conferred by the statute in accordance with the modes ofprocedure prevailing in such courts. Indeed, it may not be doubted that it must have been the same point of view which has caused it to come to pass that during the number of years which have elapsed since the enactment of the Employers' Liability Act and the Safety Appliance Act, and in the large number of cases which have been tried in state courts, growing out of the rights conferred by those acts, the judgments in many of such cases having been here reviewed, it never entered the mind of anyone to suggest the new and strange view concerning the significance and operation of the Seventh Amendment which was urged in this case and the cases which were argued with it." (Italics ours.)
It has been held by both federal and state courts that an appellate state court in a case arising under this act may grant a partial now trial in accordance with the practice of the court, or may direct a new trial as to the amount of damages only and affirm on the issue of negligence. (Norfolk So. R. Co. v. Ferebee, 238 U.S. 269, 35 Sup. Ct. 781,59 L. ed. 1303; Kennon v. Gilmer, 131 U.S. 22, 9 Sup. Ct. 696,33 L. ed. 110.) It has likewise been held that state courts having jurisdiction of such cases may proceed under a state statute permitting three-fourths or more of the jurors to return a verdict. (Louisville N. R. Co. v. Holloway's Admr.,168 Ky. 262, 181 S.W. 1126; affirmed in Louisville N. R. Co.v. Holloway, 246 U.S. 525, 38 Sup. Ct. 379, 62 L. ed. 867.)
In St. Louis, I. M. S. Ry. Co. v. Craft, 115 Ark. 483,171 S.W. 1185, L.R.A. 1916C, 817, a verdict was returned for $11,000 for pain and suffering; defendant appealed to the Supreme Court of the state where the judgment was reduced to $5,000 and as so reduced was affirmed. The case arose under the Federal Employers' Liability Act, and was *Page 423 taken to the Supreme Court of the United States on writ of error (237 U.S. 648, 35 Sup. Ct. 704, 59 L. ed. 1160, 1165).
In passing upon the alleged excessive character of the verdict and judgment, the United States Supreme Court said:
"Finally, it is said that the award of $5,000 as damages for pain and suffering, even though extreme, for so short a period as approximately thirty minutes, is excessive. The award does seem large, but the power, and with it the duty and responsibility, of dealing with this matter, rested upon thecourts below. It involves only a question of fact, and is not open to consideration here." (Italics ours.)
To the same effect see Arizona ex rel. Gaines v. Copper QueenC. M. Co., 233 U.S. 87, 34 Sup. Ct. 546, 58 L. ed. 863; St.Louis-San Francisco Ry. Co. v. Bridges, 159 Miss. 268,131 So. 99; Yazoo Miss. Valley Ry. Co. v. Scott, 108 Miss. 871,67 So. 491, Ann. Cas. 1917E, 880, L.R.A. 1915E, 239; Dimick v.Schiedt, 293 U.S. 474, 55 Sup. Ct. 296, 79 L. ed. 603, 95 A.L.R. 1150. See, also, Grand Trunk Western Ry. Co. v. Heatlie,48 Fed. (2d) 759, and cases cited; Basher v. International Ry.Co., 15 Fed. (2d) 388; 2 Roberts' Federal Liability of Carriers, 2d ed., sec. 1031 et seq.
A further examination and consideration of this question satisfies us that the Federal Employers' Liability Act in no way modifies or impairs the right of this court which it has long exercised to modify a judgment by reducing the amount of damages allowed, conditionally upon the plaintiff accepting the modified judgment or otherwise having a new trial. This court has never assumed to unconditionally pass upon the facts and usurp the authority of the jury to unqualifiedly fix the amount of damages to be allowed. On the contrary, when we have held a verdict excessive, we have uniformly given the plaintiff his option, to accept the reduction, or have a new trial on the facts.
It is not easy to determine just what amount in a lump sum will remunerate one for the financial loss he sustains by reason of an accident of this kind. Many things enter into the determination of the amount that should be awarded *Page 424 in a personal injury or death case. Courts must after all face and solve these problems in a practical way. In doing so they should keep in mind the fact that sympathy for the injured and his family and, sometimes, a not uncommon prejudice against employers and especially corporations, influences jurors in making up the amounts they will award. It is also proper to consider the general consensus of opinion of jurors and courts in fixing or deducing damages in similar cases in the various jurisdictions throughout the country; this on the theory that the prevailing opinion of reasonable practical men will be the nearest approach obtainable to what is a fair and just compensation in similar cases. The fact that the amount of a verdict is out of harmony and incompatible with the evidence bearing on the nature and extent of the injuries for which it is intended to compensate, affords, in many cases, ample reasons for holding it excessive, and this is especially true where the verdict is large and appears to be excessive by a large percentage of the whole.
Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L.R.A., N.S., 634, stated the rule in this state for computing damages for injury to a servant for the negligence of the master as follows:
"Where an injury has been received by the servant on account of the negligence of the master, damages should be computed and ascertained and awarded on the basis, as nearly as possible, of compensating the servant for the pain, suffering and loss he has sustained and will sustain in the future on account of the injury; and he should be placed, as nearly as it is possible to estimate, in as good a position as he was (in) before the injury was inflicted."
The foregoing rule was embodied in an instruction given by the court in case of Ramon v. Interstate Utilities Co., 31 Idaho 117,170 P. 88, and on appeal was approved by this court. (See, also, Chesapeake O. R. Co. v. Kelly, 241 U.S. 485,36 Sup. Ct. 630, 60 L. ed. 1117, L.R.A. 1917F, 367.)
In the Maloney case the court held that the verdict rendered by the jury was "excessive and disproportionate *Page 425 to the injury received," and affirmed the judgment conditionally on plaintiff filing a waiver of the amount held to be excessive. This court has uniformly adhered to the rule and practice adopted in the Maloney case down to the present time. Verdicts and judgments have been reduced by this court as excessive in the following cases: Walsh v. Winston Bros. Co.,18 Idaho 768, 111 P. 1090; Keim v. Gilmore P. R. R. Co.,23 Idaho 511, 131 P. 656; Denbeigh v. Oregon-Washington R. N.Co., 23 Idaho 663, 132 P. 112; Barter v. Stewart Min. Co.,24 Idaho 540, 135 P. 68; McAlinden v. St. Maries Hosp. Assn.,28 Idaho 657, 156 P. 115, Ann. Cas. 1918A, 380; Kinzell v.Chicago, M. St. P. Ry. Co., 33 Idaho 1, 190 P. 255.
Counsel for respondent rely chiefly on the case ofReinhold v. Spencer, 53 Idaho 688, 700, 26 P.2d 796, in support of their contention that this court has no power to reduce the judgment, on the ground of the verdict being excessive. In that case this court said:
"Coming to the question of damages, which appellant urges are excessive, we know of no rule that will enable us to reduce the damages . . . . it is solely for the jury to estimate them as best they can by reasonable probabilities, based upon their sound judgment as to what would be just and proper under all of the circumstances, which may not be disturbed in the absence of some showing that the jury were biased or prejudiced or arrived at the amount in some irregular manner."
As may be observed from an examination of the Reinhold case, it involved an unusual and peculiar state of facts, out of which a permanent injury arose, continuing in the element of pain and suffering. The statement above quoted was made with special reference to the facts and circumstances as disclosed in that particular case and was not intended in any way to overrule or modify the long established practice of this court in its exercise of the power to modify and reduce a judgment, because of the excessive amount allowed by the verdict of the jury. An examination of the cases cited in support of the above-quoted statement *Page 426 will disclose that in all those cases this court held that the verdicts were not in fact excessive.
A further examination of this case has convinced us that the opinion of the court on the original hearing herein should be adhered to, except in so far as it reduced the judgment to $20,000.
The members of the court are not in accord on the question of the excessive character of the verdict and judgment. Chief Justice Givens still adheres to the conclusion reached by him upon the original hearing, that the judgment should be reduced to $20,000. Justice Budge favors a reversal of the judgment as to the amount of damages and the ordering of a new trial on that issue alone. Justice Morgan is of the opinion the judgment should be affirmed for the full amount of $35,000 in accordance with the verdict of the jury; while Justice Holden and the writer are of the opinion that the judgment should be reduced to $25,000 and conditionally affirmed in that sum.
It is the opinion of the Chief Justice, Justice Holden and the writer that, since one of the justices favors an affirmance of the judgment in toto and two favor affirming in the sum of $25,000, it necessarily follows as a matter of law that the judgment should be, and is, affirmed in the sum of $25,000. Judgment will be affirmed in the sum of $25,000 on condition that respondent file within thirty days after the going down of the remittitur a waiver of the excess of $10,000. Upon failure to do so, the judgment will be reversed and a new trial granted on the whole case.
Judgment modified and affirmed in accordance with the views above expressed. Costs awarded in favor of respondent.
Givens, C.J., and Holden, J., concur.