The opinion
Ott, J.
(dissenting)—The learned and experienced trial judge, who observed the conduct and demeanor of the jury during the entire trial, and who was present and observed the myriad of incidents that occasioned the trial of this strongly contested case, concluded that, from all he saw and heard, the defendant had not been afforded a fair and impartial trial by a fair and impartial jury.
The laws of the state of Washington guarantee to all litigants appearing before the courts a fair trial. In my opinion, whether this guarantee has been accomplished in any given *700 case can best be determined by the qualified jurist who tries the case.
The trial judge found that the jury was prejudiced, and that this prejudice was reflected in a shockingly excessive verdict. If, because of prejudice, the verdipt is so large as to shock the conscience of reasonable men, how can it be said that such prejudice did not also dominate the jury’s decision on the merits?
Our laws guarantee to litigants a fair and impartial jury trial on all issues. It was never intended that a litigant must accept a jury to try his case which will be prejudiced in fixing the amount of the recovery, but which may be fair in deciding the issue of whether there should be recovery at all. Upon this finding alone, the trial court' should be affirmed.
Further, the trial judge concluded that he committed error in the giving of instructions Nos. 12, 21,- and 23, and that he committed error in failing to give requested instructions Nos. 8, 9, 10, and 22. His. conclusions in this respect are likewise-correct. The preceding dissenting opinion ably expresses the reasons why these instructions were erroneously given and why the requested instructions should have been given. In this regard, I concur in that dissent.
In my opinion, the judgment of the trial court in granting a new trial should be affirmed.
September 21, 1955. Petition for rehearing denied.