¶1 (dissenting). I cannot believe that the jury could have been, or were, misled by the instruction given relative to the preponderance of the evidence. The entire paragraph reads:
“Now, fair preponderance of evidence simply means a fair weight of the evidence. Just imagine now a pair of scales that are evenly balanced. Put the facts in evidence in favor of the plaintiff on one side and put the facts that are in favor of the defendant on the other side of the scales and then see in your judgment on which side the fair balance of weight is. That’s all we mean by fair preponderance of evidence, which is a fair weight of the evidence. We do not necessarily mean, although it might be so, although we do not necessarily mean, that the preponderance of evidence lies on the side of the party offering the most witnesses, but we mean rather that under all the testimony in the case the probability of the truth lies on the side of the party having the affirmative, which party is the plaintiff, of course, in this case on these issues.”
¶2 It seems to me that they must have understood by the language italicized that the probability of truth “must lie” on the side of the party having the affirmative, “which party is the plaintiff.”
¶3 Two firms of competent attorneys appeared for the defendant, and one member of each firm repre *621 sented bim and took part in tbe proceedings on tbe trial. They no doubt listened attentively to the instruction given and, bad they understood its effect to bave been as now claimed on defendant’s behalf, they would doubtless bave called tbe attention of tbe court to it, while under no legal obligation to do so. But it is apparent that they did not so understand it. They evidently assumed, as doubtless did tbe jury, that it was a fair statement of tbe manner in which tbe testimony should be weighed, with tbe burden resting on tbe plaintiff to sustain tbe preponderance thereof.
¶4 Further evidence of their so understanding it is disclosed by tbe fact that no error was assigned thereon in their motion for a new trial, or in tbe supplemental notice of appeal filed and served by them.
¶5 Tbe bill of exceptions was filed in this court on July 18, 1933. Thereafter additional counsel were employed by tbe defendant, and on August 29, 1933, they applied to this court for, and were granted, permission to amend tbe supplemental notice of appeal by alleging tbe error under consideration. In my opinion it does not warrant a reversal.
¶6 Tbe verdict rendered was not so grossly excessive as to demand interference on our part. In disposing of this question on tbe motion for a new trial, tbe court said:
“There was evidence on the part of tbe plaintiff of excruciating pain accompanied with difficulty of breathing for some days after tbe accident, and that her whole right side has been so affected; that even now at the time of tbe trial she still has pain in her arm, side and leg on the-right side, and that after she has been on her feet" for some time, which is almost a daily occurrence, she becomes easily tired in her right leg and side, and has pain. Dr. Evans’ *622 evidence was that by reason of the injury she had suffered a permanent loss of 25 per cent, in the movement and efficiency of her right arm. Nevertheless, because a proper basis was not laid for the recovery of a permanent injury in this respect the court limited the jury expressly to such reasonable damages as the jury might find that the plaintiff would suffer for a reasonable time in the future.
“I am satisfied that there was no error in the trial and no testimony admitted that would bias or prejudice the jury, and under those circumstances I cannot substitute my judgment of the damages for the judgment of the jury.”
¶7 I concur in the conclusion reached that the verdict was not against the great weight of the evidence.
¶8 The judgment should be affirmed.