36 N. D. 552, 162 N. W. 903. In view of the unsatisfactory character of the evidence going to establish permanent injuries, the award of damages here appears to be large. We are not to be understood as holding, however, that they are so large as to indicate passion and prejudice if awarded under the evidence here at the end of an assuredly fair trial. Plaintiff’s counsel, in the respect indicated and in other respects not necessary to mention, overstepped the bounds of propriety in presenting the case to the jury. This, together with the erroneous practice employed by the court in connection with the special verdict, gives rise to a grave doubt in our minds as to whether the defendant has had the benefit of a fair trial, Altogether, we are of the opinion that in the interests of justice a new trial should be awarded. The judgment appealed from is vacated and a new trial awarded, with costs to abide the event.
Reversed and remanded.
Robinson, Ch. J., and Christianson, J., concur.
Grace, J. (dissenting). I am unable to agree with the conclusion arrived at by the majority opinion. With reference to the court reading the complaint and answer to the jury, thus permitting them to understand the issues, if this were error, it was error without prejudice, and hence not reversible.
The counsel for both plaintiff and defendant must have thoroughly stated the issues as formed by the pleadings, in presenting the case to the jury. Certainly, the first thing the counsel for plaintiff would do, in proceeding to present the case to the court and jury, would be to state to the jury the issues formed by the pleadings; and, no doubt. defendant would do the same thing on presenting his side of the case to the jury.
The trial could not well have been had unless this were done. The reference by the court to the pleadings, while giving instructions of law, in the circumstances of this case, was not prejudicial, reversible error.
We are of the opinion that all of the reasons given for the reversal of the judgment are largely technical. The defendant has had a fair
