I dissent. The majority opinion in this case has reached the conclusion that the verdict of the jury is unwarranted on the theory that the testimony was insufficient to hold the defendant guilty of gross negligence in causing the death of L.E. Cowden in an automobile accident near Miles City. There is no serious suggestion that there was error in the introduction of testimony, in the instructions to the jury, in the amount of the verdict, or that the jury was improperly influenced.
The fundamental law of the land inherited from generations back provides for the determination of the facts of each lawsuit by a jury of twelve disinterested citizens. The jury determines the facts, and the court determines the law. But this theory has been gradually modified by courts in recent generations *Page 209 to the extent that a very large percentage of our cases fairly tried by a fair jury are reversed by supreme courts and either sent back for a new trial, or dismissed as unwarranted. Supreme courts have practically abrogated the duty of the jury or at least often far exceeded their just authority in my opinion. Jurymen from the common body of the people and more in touch with the conduct and impelling forces that actuate the common people are possibly, indeed probably, better able to interpret the effect of commonplace conditions than the judges who are often too technical and inclined to review circumstances appearing at the trial with a one-sided partiality. It is therefore a confirmed principle with me, except in extreme cases, that it is improper for a court to review and weigh the evidence with a view of rendering a new verdict. There might be extraneous circumstances which would so prejudice a jury at the time of the trial that the court would be warranted in setting it aside on the ground of prejudice. There are no circumstances warranting any conclusion of that kind in the instant case.
But so long as this court has determined that there was not sufficient evidence of gross negligence to sustain the verdict, I revert to the testimony to explain a few of the reasons why I think the jury rendered the verdict that it did in this case. Justice Stewart has set out much of the testimony. I will not repeat, as he has in his usual fair manner correctly stated the facts which most seriously impressed him. I rely principally on the testimony of the only eye-witness, the farmer Fred Hansen, living many miles from the residence of the parties. He appears to be wholly disinterested. He testified that he was in his barnyard approximately a quarter of a mile distant from the road, and used this to me convincing language: "All I can say is that I heard a car doing a lot of honking out in the road as I was in the barnyard, and that is what drawed my attention, and I turned around and saw these cars going down the road between fifty and sixty miles an hour, and at the speed they were going I went in the house and I said to my wife, — well, *Page 210 I went to the house and I watched these two cars and I had in mind something was going to take place, and I stood there and watched them until it came to a climax. I don't know what the one car was, I knew the one was a Chevrolet. The way it looked to me, he was trying to pass this Studebaker or whatever it was, — I could tell it was a big car, — and I stood right there and watched them, and this Chevrolet kept gaining on the big car, and I couldn't say whether they hit or not, but from where I was and the way it looked, the Chevrolet hit this big car, and the way it looked from where I was, when the Chevrolet hit the big car, the big car started rolling over, it went end over end. It went end over end four times as near as I could see. From that point where I was standing, it was about sixty rods. I observed the cars on the road for a distance of between half and three-quarters of a mile. There was not a thing to obstruct my view there, and I saw them about that distance. Yes, I heard the honking of the horn, it was three or four times. Yes, that was the car I described as a Chevrolet. There was no response made by the large car to the honking of the horn that I observed, and he held his speed right along. After this I went back in the barnyard and got my saddle horse and went down there. Yes, I went over on my horse, and when I got there I saw the two wrecked cars. After I got down there I saw where the Studebaker had skidded I would say about thirty feet."
The witness was attracted by the horn. He watched the two cars for a distance of a half to three-quarters of a mile. He went from the barnyard to his house. He "had in mind something was going to take place." He talked to his wife about it before the "climax." This testimony establishes that the circumstances were uncommon. He scented danger — he knew the slippery condition of the road. The speed of both cars was apparent and apparently suggested danger. He [defendant] "held his speed right along." It is unfortunate the witness was not permitted to detail the conversation with his wife, but *Page 211 this is one of those cases where the rules of evidence do not permit.
It appears to me from this evidence the cars must have traveled close together for quite a distance. The honking of the car would suggest to me that the defendant was reluctant to let the boy driving the Chevrolet car go past him, and the boy, when he did get by, boy like, crowded over and caused the accident. There appeared little doubt that the boy was grossly negligent, but the driver of this car, a man of mature age, should have taken into consideration the fact that the passing car was being driven by a boy. The road was very slippery and the rate of speed was very high under the circumstances. The defendant was perhaps within his rights in giving half the road, but it was no time or place for him to closely insist on his rights. If the boy was violating the road laws there was a safe and sane remedy. Indeed, it was the duty of the driver to report to the proper authorities of the road violation by this boy and perhaps thereby save an accident of similar character at some other time. This circumstance may have appeared to the jury as it does to me, and on such suggestion they may have rendered their verdict.
However, there is another feature that should be considered. The defendant testified that he did not know the road was icy until after the accident. He was driving and it was his duty to know the condition of the road. All of the other witnesses testified that the road was icy and slippery. The testimony of the other men in the car that they did not know the road was icy is no excuse. They were not paying attention to the driving, knowing full well that the man at the wheel was perfectly capable of doing the driving himself, and there was no time to protest to the driver. He could not be bothered by protests while the other car was passing.
The testimony relative to the speed of the cars varies very much. The jury was entitled to believe that the car was running at as high a rate of speed as sixty-three miles per hour, which is too fast on an icy, slippery road. *Page 212
I view this testimony in the light of common experience and frequent newspaper accounts of accidents. It behooves the court to protect the public from reckless driving, and while an innocent man should not be held liable for an unavoidable accident, the testimony of the driver should be viewed very critically. Therefore my dissent.