stating that the “driver of an automobile certainly, in case of a breakdown, a collision, or other accident, if he exercises reasonable care, may use the highway for the purpose of inspection, or repair in case his car is unable to proceed, or may render assistance to another on the highway”
How later courts described this case
- stating that the “driver of an automobile certainly, in case of a breakdown, a collision, or other accident, if he exercises reasonable care, may use the highway for the purpose of inspection, or repair in case his car is unable to proceed, or may render assistance to another on the highway”
Written by the judges who cited it.
The opinion
*75
Mr. Justice Angstman:
I concur in the result reached in the foregoing opinion, but not with all that is stated in it. With reference to what is therein said in an attempt to bolster the majority opinions in the cases of
Wise
v.
Stagg,
94 Mont. 321 , 22 Pac. (2d) 308 , and
Tanner
v.
Smith,
97 Mont. 229 , 33 Pac. (2d) 547 , my views are sufficiently set forth in the dissenting opinions in those cases.
So far as the foregoing opinion attempts to distinguish this case from the
Wise
and
Tanner Gases,
because of the presence or absence of extrinsic matters, aside from the size of the verdict, which might "create prejudice or appeal to the passion of the jurors, I disagree with it. In determining whether a verdict is excessive, the only elements that must be considered are the size of the verdict and the extent of the injuries and damage. If the verdict is out of proportion to the injuries inflicted and the damages sustained to an extent so as to shock the conscience, it is excessive and must be said, as a matter of law, to rest upon passion and prejudice, whether or not there be evidence of extrinsic facts showing passion or prejudice. If it is not out of proportion to the injury and damage, it is of no moment that there may have been extrinsic facts which might easily have caused passion or prejudice.
Instead of attempting to draw a refined distinction between this and the
Wise
and
Tanner Cases
— a distinction so indistinct and shadowy that lawyers and district judges cannot follow it as a guide in future cases — the majority opinions in the
Wise
and
Tanner Cases,
for the sake of consistency, should now be pronounced erroneous so far as they compelled a reduction of the verdict and judgment.