125 P. 133 | Mont. | 1912
Lead Opinion
delivered the opinion of the court.
This action was brought to recover damages for a personal injury sustained by the plaintiff by a fall caused by a defect in a sidewalk along one of the streets of the defendant. It is alleged
1. The instruction referred to is the following: “No extraordinary care was required of Mrs. McCabe, but, if there ivas the slightest want of ordinary care on her part and such contributed directly to her injury, she cannot recover in thjs ease.” It is argued by counsel for defendant that the condition of the evidence is such that the jury might have inferred want of ordinary care on the part of the plaintiff contributing directly to her injury, and hence that the defendant was entitled to have its attention called to that aspect of the case by appropriate instructions. It appears from the evidence that the plaintiff, in the dusk of the evening of May 26, 1910, in company with her little daughter,
But let us assume, as the trial court did, that the evidence
2. The amount of the verdict is excessive. The plaintiff is a
The cause is remanded, with directions to the district court to grant a new trial, unless within thirty days after the filing of the remittitur the plaintiff shall give her consent in writing that the judgment be reduced to $3,000. If such consent is given, the judgment will be modified accordingly as of the date of its original entry, and together with the order denying the new trial will stand affirmed. That part of the judgment relating to the costs is not to be disturbed.
Concurrence Opinion
I concur in tbe result reached, but I do not agree with all that is said in the first paragraph of the opinion above. In my judgment the trial court entertained the correct view that the evidence presented a question of contributory negligence, and this was properly submitted to the jury.
In view of the definition of negligence adopted by this court in Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940, I think the instructions given fairly cover the question of contributory negligence, and that the instruction tendered by defendant •merely emphasized the rule, without stating any different proposition of law. Under such circumstances, the trial court cannot be put in error because of the language employed to express the rule, when it appears, as it does from this record, that the jurors must have understood the principle announced by the court for their government.