The opinion
Emery, J.
When this case was first before the law court, as reported in 92 Maine, 454, we declared that the finding of the jury upon the question of the defendant’s liability for the death of the plaintiff’s intestate was not made to appear so unmistakably wrong *205 as to require us to set it aside. We did set the verdict aside, however, because of the excessive damages assessed by the jury.
A second jury has assessed the damages at neai'ly the same sum that was assessed by the first jury, although the evidence upon the question of damages at the second trial did not preponderate any more for the plaintiff. We think this question must have been more or less obscured by the smoke of the battle over the question of liability which the defendant again raised; and that the jury thus lost sight of the rules governing the assessment of damages.
The vei'dict as to the question of liability should stand, and judgment be eventually rendered thereon for the plaintiff. The assessment of damages, however, must be set aside and damages be assessed anew by a jury unaffected with any contention over the question of liability. This the court has the power to do. Boyd v. Brown, 17 Pick. 453 ; Kent v. Whitney, 9 Allen, 62 ; Negus v. Simpson, 99 Mass. 388 .
The assessment of damages set aside and a new trial
ordered for the assessment of damages only.