it in that way would occupy some considerable time. I was never told to do it in that way. The clothes in which I worked was a pair of overalls and a dark shirt; when I went there to be employed by W. T. Garratt I told my parents I was going there to wrap; the shirt I wore while working in that factory was a dark shirt with white stripes. It was calico, I guess. The sleeves were not very loose. The accident happened this way. I had just finished my lunch and went to work on the machine. I was told to fix some stuffing nuts at the side and was working on them for a while when I found a defective nut and reached over the top of the knives to put it on this lid or shelf as I was told to do, and my arm got caught. I don't know whether it was the sleeve or the arm itself; it happened so quickly. The cutters tore into my arm and then I was taken down to the Receiving Hospital, to the Harbor Emergency down near the waterfront.' With reference to the effect of the injuries he sustained, the plaintiff testified: "The arm and hand is smaller than the other arm and hand which was not injured. I have no power at all in the thumb or forefinger-no sensation-can't feel anything in those fingers and can't use them at all; can't bend them except as indicated. There is no sensation at all in the middle finger." He said that, prior to the accident, he had been "taking music lessons upon the violin," but that since his arm and hand were injured "it is impossible for me to further manipulate the violin"; that it is with great difficulty that he can now handle a pen so as to write; that in cold weather he still suffers "terrible pain in the arm.

The mother of plaintiff saw the injured arm and hand the day following that upon which the accident happened, when the attending physician was dressing the wounds, and she declared that "the arm was in an awful condition; that the flesh was all chopped away, just like it had been chopped off with a knife or something." She said that the boy had been unable to take lessons on the violin after the accident, and that, after some practice, he got so that he could write by holding a pen between his thumb and little finger. For about a year after he was hurt, she continued, he suffered from occasional fainting spells when the weather was cold.

Dr. Stoney, who was called in and attended the plaintiff immediately after the accident occurred, had died before the trial of this action, and Drs. Haber and Buckley, at the request of plaintiff, made an examination of the injured arm. and hand and the muscles of that member. Dr. Haber testified, in part, as follows: "When I refer to the arm which I say was slightly smaller, I mean the arm between the shoulder and the elbow. The forearm, between the elbow and the wrist was considerably smaller. The muscles were atrophied and some of them in a degenerated condition. By atrophy, I mean, the muscles due to the injury to the nerve supply [ing] them, degenerates and do not perform the functions that they should. They cannot perform those functions because the nerve supply is shut off, there is a nerve located in the arm; part of the brachial system which supplied the forefinger and the thumb; that nerve originates in the plexus; that is in the brachial plexus. Those are the nerves which originate just above the shoulder in the neck. That nerve supplies the muscles in the upper arm, in the forearm, the muscles of the hand and also the sensation of some parts of the skin. It supplies or controls the muscles which bend the finger or flex the finger-all of the fingers in part and entirely of the index and middle fingers. It supplies some of the muscles of the thumb. . . . From my examination of this arm, and hand and fingers, and from the test that I have made of the hand and fingers, I will state that the nerve has been injured but not entirely destroyed. Some of the muscles supplied by that nerve are active; others are not. From my experience as a doctor, I do not think it will be possible for the boy at any time to recover the use of the thumb and finger. I have observed weakness in that finger and hand. There are other signs of an injury to the nerve and to the artery. Those signs are, the hand has not developed as the other hand is; it is smaller, two of the fingers are shorter and not as large in circumference. . I do not think it will ever be possible for plaintiff to perform any manual labor in that arm or hand. I do not think it would be possible for him to play upon the violin with any degree of success with his hand and arm in its present condition."

...

Dr. Buckley corroborated generally Dr. Haber as to the condition in which the lad's arm, hand and the muscles of

the injured member had been left by the injuries sustained by the accident. He said that it was his opinion that the plaintiff would never be able to use the injured hand again to any advantage; that it would be impossible for him to play on any musical instrument such as a violin; that "the boy is suffering from wasting of the inner side of the forearm, and also suffering from a general defect of the arm.' Dr. Buckley said that the atrophied condition of the arm was due to the injury to the whole nerve. This witness declared that "from my experience as a physician and surgeon, the injuries received by plaintiff, as indicated by his present condition, must have caused him great suffering; whenever you have an injury to the nerve, you are sure to have a great deal in the track of that ever afterward, and the slightest cold or changes of temperature are very apt to produce it."

The plaintiff and his mother and father testified that for two years previously to the time he was injured he had been a pupil of a teacher of violin music, and had acquired such proficiency as a performer on that instrument as that he was able to and did, on several occasions, play in public.

The foregoing statement embraces, in substance, all the important facts established by the evidence.

There are, as stated, but two points urged on this appeal. The sufficiency of the evidence to justify a verdict in favor of the plaintiff is not challenged, the only claim with regard to the evidence being, as seen, that the damages awarded by the jury are so excessive as to compel the conclusion that they were given under the influence of passion or prejudice. (Code Civ. Proc., sec. 657, subd. 5.)

We see nothing in the record from which this court would be warranted in declaring that the jury, in the rendition of their verdict and in arriving at a conclusion as to the amount at which they assessed the damages, were influenced by any other motive than a conscientious consideration of the facts which were adduced before them. The testimony discloses and establishes beyond all peradventure that the boy was so seriously injured as to permanently impair his ability to pursue during the balance of his life an occupation requiring the exercise of his full, natural physical power; that for two years after the accident he suffered from the effect of his injuries, and that his condition at the time of the

trial, which took place over two years after the accident, was such as to justify Drs. Haber and Buckley in testifying, by way of a professional prognosis of his injuries, that, during the remainder of his life, he would in all probability continue to suffer pain from said injuries. The fact that the plaintiff will forever be prevented, by reason of the impairment, or, in truth, complete destruction, of his ability to pursue the musical studies on lines for which, evidently, he possesses peculiar talent, is a matter of no little importance, and was a proper item for the consideration of the jury in the fixing of such compensation for the great loss he has sustained through the negligence of the defendant as would be fair and just. As a result of his injuries, his right arm and hand have grown smaller from atrophy than his left arm and hand, and the doctors hold out no hope that the difficulty can ever be remedied or corrected in any perceptible degree. The necessary result is that the plaintiff is not only seriously handicapped permanently in the great struggle for existence, but a laudable ambition to acquire proficiency in the particular musical line to which his genius in that respect directed him is absolutely destroyed and thwarted when he is yet far removed from the threshold of man's estate. As is well suggested by counsel for the respondent, in replying to cases cited by appellant where damages were held to be excessive for the loss of two fingers or some like injury, "the injuries here complained of were vastly more serious than would have resulted from a mere fracture of the arm or a fracture or amputation of the fingers."

No reviewing court has any right to invade the province of a jury in cases of the nature of the one here by cutting down or diminishing the amount of damages awarded unless it clearly and distinctly appears from the face of the record. evidence itself that the sum assessed as the compensation for the injuries sustained is so far beyond a reasonable and just admeasurement of damages, under all the circumstances appearing, as to imperatively force upon the court the fact that such damages could not have been given except under the influence of passion or prejudice.

All the cases say, as is said in Clare v. Sac. Elec. etc. Co., 122 Cal. 506, [55 Pac. 327], that "in cases of this character, there 11 Cal. App.-10

can be no direct evidence of the amount of damage sustained, or the amount of money which will be a compensation for the injury, but it is sufficient to show to the jury the extent of the injury, and the amount of their verdict thereon is to be determined by the exercise of an intelligent discretion; and, unless the amount of the verdict is such as to indicate that it was given under passion or prejudice, it will be sustained.' In other words, as is well said in Graham & Waterman on New Trials: "The court may set aside a verdict as excessive, in a proper case, where it appears that the amount could only have been arrived at through passion or prejudice. But it cannot, on the mere opinion, judgment or feeling of the judges, fix the sum the plaintiff ought to have. It is no part of its duty to assess damages in cases of this kind. This duty the law confers upon juries. Nor is this court any better qualified than a jury to determine such amount. Attainments in the law do not aid at all in the discharge of such a duty; there is no reason to suppose the judges possess such experience in matters of this kind, or are so peculiarly endowed by nature, that their judgments upon such questions are more unerring than those of juries." Again, the same authors, at page 451 of their work, say: "It is clear that the reason for holding the parties so tenaciously to the damages found by the jury in personal torts is, that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury, governed by a sense of justice. It is, indeed, one of the principal causes in which the trial by jury has originated. From the prolific fountain of litigation numerous cases must daily spring up, calling for adjudication for alleged injuries, accompanied with facts and circumstances affording no definite standard by which these alleged wrongs can be measured, and which, from the necessity of the case, must be judged of and appreciated by the view that may be taken of them by impartial men. Το the jury, therefore, as a favorite and almost sacred tribunal, is committed by unanimous consent the exclusive task of examining those facts and circumstances, and valuing the injury and awarding compensation in the shape of damages. The law that confers on them this power and exacts of them the performance of the solemn trust, favors the presumption that