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live for a longer or shorter period than the probable expectancy of the average person of the same age as laid down in this table. In estimating the probable length of plaintiff's life, as compared with the average duration of life of one of the same age, her health and all other matters pertinent as disclosed by the evidence, ought to be considered and the proper weight given to all these things in fixing the expectancy of life, diminishing or increasing the figures laid down in the table according to the facts of the particular case before you."
Error is also assigned upon the following excerpt from the charge:
"And if you believe further, in applying those tests and others, that a witness, any witness, for either side, has deliberately falsified, or has lied about any part of his testimony, from that fact you may disregard all of his testimony or only a portion of it; I say you may disregard all of it, or you may believe some of it, if it is corroborated by other testimony, or whether it is or not."
The specific objection urged being that this instruction did not refer to "material" testimony. The charge did not refer to any specific witness and defendant's counsel did not call the attention of the court to the omission. We might dispose of this objection on the authority of Granger v. Darling, 156 Mich. 31, on the ground that the objection is not here available. But we have frequently held that isolated excerpts from the charge may not be considered alone; that we must consider the charge in its entirety. This excerpt was but a part of the instruction on the credit of witnesses. The court has stated the things to be considered in weighing the testimony of witnesses, their appearance on the stand, interest or lack of it, their manner, everything, so that the jury could decide which was truthful, etc., and concluded after the above excerpt with the statement:
"In other words, you, again, are the sole judge about that. The effect of a witness lying before you is for you to decide, that is, upon the balance of his testimony."
We are not persuaded that defendant was harmed by the instructions on this subject taken as a whole.
We have considered, but not discussed, all the errors assigned growing out of the trial. We are unable to find in any of them reversible error.
Defendant moved for a new trial, urging that the verdict was against the weight of the evidence and that it was excessive. From what has been heretofore stated it will be noted that the questions for the jury were within a very limited compass. The negligence of the defendant was admitted; there was no question of contributory negligence involved; and the seriousness of plaintiff's present condition was established by the overwhelming weight of the evidence and apparently not doubted by defendant. This left then for the jury to determine whether her condition and injuries were as alleged in the declaration and whether they were caused by defendant or by some other cause. If defendant alone was responsible for her injuries and condition what amount would reasonably compensate her? These were the issues to be determined by the jury.
We think there is an abundance of testimony to support the finding of the jury that the street car accident produced plaintiff's injuries and present condition. Many witnesses testified to her condition of perfect health after the gunshot wound. The X-ray of the spine shows the bullet to be encased, and medical testimony, the reliability of which was for the jury, is to the effect that when so encased the probabilities of any trouble from it are at a minimum. There was also an abundance of testimony that plaintiff was not afflicted with diabetes insipidus. The evidence supports the finding of liability.
Should this court set aside this verdict because excessive? In considering this question the power of the appellate court to act and to vacate judgments or to require an abatement from the amount recovered as a condition of affirmance must not be doubted. That such power rests in this court is beyond question. This power is absolutely essential to the proper administration of justice. Nor in the consideration of the question should the functions of the jury and of the reviewing court be confused. In personal injury cases the amount of damages is not subject to exact mathematical calculation. Primarily the question is for the jury and we cannot arbitrarily substitute our judgment for that of the triers of the facts. That would be to usurp the functions of the jury. But where it clearly and manifestly appears that the verdict is the result of prejudice, caprice, passion, partiality, sympathy, or kindred reasons rather than a result of the consideration of the evidence and actual existing conditions, the appellate court in the discharge of its functions is bound to act. In reviewing a case with this question involved it becomes our duty to carefully examine the record, to learn whether there have been appeals to prejudice, passion, partiality and those things not having a legitimate place in a trial where rights are being adjudicated, to determine whether the amount awarded is manifestly and clearly without foundation in the testimony, and to examine analogous cases in this and other appellate courts. While no two accidents are liable to be exactly alike and therefore no two cases exactly alike, they may be similar and other cases helpful in reaching a conclusion. We have read this record of 630 pages in its entirety and we find within it no suggestion by plaintiff's counsel during the trial or argument of the poverty of plaintiff or wealth of defendant, no parading of the fact that defendant is a corporation; in fact, there is an absence of those things which would tend to unduly influence a jury or prejudice defendant. The record, however, does establish great suffering, intense pain, a present and permanent disability of plaintiff, and if the testimony offered by plaintiff is true, and the jury has found it to be true, she will continue a helpless cripple for life. By the verdict the jury has found defendant alone responsible for this. The verdict was a large one, the injuries serious, the case one for substantial damages. The trial occurred about 22 months after the accident. During that time plaintiff's expenses necessitated by the accident exceeded $2,200. It may be assumed that the expenses of operation, nurses and medical attendance will be less and her necessary expenses reduced in the future. The trial court, who saw the plaintiff and heard the testimony, in overruling defendant's motion said:
“This is an exceptional case. Rarely is a plaintiff in a personal injury case in as bad a condition as the plaintiff was at the time of this trial. It was very evident that her condition was very serious and that she had suffered a great deal. If her sufferings and her condition was due to the street car accident, and the jury so found, the verdict was far from being excessive. It was very evident that this was a case that would result in a large verdict, and the evidence would clearly sustain a larger verdict than the one rendered."
Let us now turn to some of the cases. While many. have been examined by us but comparatively few will be discussed or cited. Exhaustive notes with numerous citations of authorities will be found in L. R. A. 1915F, 30, and 16 Ann. Cas. 8. In Retan v. Railway
Co., 94 Mich. 146, this court affirmed a judgment of $30,000 against the objection that it was excessive. Both feet had to be amputated, one near the knee and the other forward of the heel. In Guy v. Railroad Co., 198 Mich, 140, we affirmed a judgment of $35,000 for loss of the left arm just below the shoulder and the right hand at the wrist and other injuries. In Huggard v. Refining Co., 132 Iowa, 724 (109 N. W. 475), a judgment for $32,916 was affirmed. Without detailing plaintiff's injuries it will suffice to state that he was rendered a helpless invalid requiring constant attendance for the balance of his life. He was 27 years old when injured and was then earning $1,100 per year. In Perkins v. Telegraph Co., 155 Cal. 712 (103 Pac. 190), the supreme court of California affirmed a judgment for $25,000. Plaintiff there, as a result of the accident, was paralyzed on the right side, blind in one eye and the other impaired, had a curved spine, had hemorrhage of lungs and stomach. She was 57 years old. The supreme court of Missouri in Corby v. Telephone Co., 231 Mo. 417 (132 S. W. 712), affirmed a judgment for $22,500. Plaintiff there was 27 years old, earning $3 per day. He was paralyzed from his hips down and had suffered great pain. In John v. Railway Co., 42 Mont. 18 (111 Pac. 632, 32 L. R. A. [N. S.] 85), a judgment of $25,000 was affirmed. Plaintiff there intermittently suffered pain in his head, slept poorly, his right side was partly paralyzed and he had lost the use of his voice. He was pronounced by one witness, “a physical wreck.” His injuries were permanent and would probably result in death. In St. Louis, etc., R. Co. v. Webster, 99 Ark. 265 (137 S. W. 1103, 1199), a verdict for $35,000, which the court remarked "seems to reach the limit," was affirmed. Plaintiff, 35 years old, was earning $79 per month. The injury was to the spine. He had suffered greatly; his sexual powers were lost. He