The opinion
McGehee, C. J.
(dissenting in part),
I concur in the majority opinion herein on the question of liability, but I think that the amount of the judgment is too large. The question of both actual and punitive damages was submitted to the jury and we are without any guide for determining the reasonableness of the amount allowed as actual damages or as to the amount awarded as punitive damages since the verdict is single and in the total sum of $30,000.
It would have been competent on an issue of punitive damages for the plaintiff: to have shown the financial worth of the defendant, and while the plaintiff: was not required to make such proof, the result of his failure to do so left the jury without any guide for determining what amount, if any, should be assessed as a reasonable fine in the nature of punitive damages. Such damages are not allowed as compensation to the plaintiff, but to deter others from acts of gross negligence, and in determining what sum would be sufficient to serve the end desired the ability of the defendant to pay should be taken into consideration. The defendant is a local wholesale grocery company and so far’as this record discloses there may have been at least one-third of the verdict awarded as punitive damages. On the other hand, the jury may have intended to assess the entire amount as *729 actual damages. In either event, the finding would, in my opinion, be excessive.
Furthermore, if we place the plaintiff’s physical disability at the full percentage testified to by his own doctor, and then consider the fact that he was guilty of contributory negligence in undertaking to go between the truck and the oncoming’ car instead of stopping his own car (if he were driving at not more than twenty-five miles per hour as he claimed), the verdict would still seem to show that the jury did not mitigate the damages as authorized by the contributory negligence instruction granted in favor of the defendant; and did not give due consideration to the undisputed fact that his earning capacity has only been partially impaired.
On the other hand, if the defendant were driving from forty-five to sixty miles per hour, as the demolished condition of his Lincoln automobile clearly indicated, (since it struck only the smooth corner of the boxcar shaped body of the grocery truck), he was guilty of contributory negligence in failing to reduce his speed when he first saw the oncoming automobile which met the truck as he undertook to pass it.
Roberds, J., joins in this dissent.