We are constrained under the facts and Oregon law as we understand it, to hold that the district court erred in refusing the requested instruction. In addition to cases cited, see also Murphy v. Southern Pacific Co., 223 Or. 522, 355 P.2d 236, 238; and Bass v. Southern Pacific Co., 196 F. Supp. 763 (1961) (D.C. Or.). The judgment is reversed and the cause remanded to the district court with instructions to grant appellant a new trial limited to the issue of whether or not appellant suffered injury or damage proximately caused by the collision, and to the issue of damages.
"The words `passion or prejudice,' within Comp.Laws § 3290, authorizing a new trial for excessive damages given under the influence of passion or prejudice, mean anger, resentment, heat, absence of reflection, disregard of the rights of others, and kindred motives. Murphy v. Southern Pac. Co., 101 P. 322, 324, 327, 31 Nev. 120, 21 Ann.Cas. 502. "Court should be slow to revise amount of verdict by suggesting remittitur, but should set it aside if there is any element of actual corruption, as distinguished from `passion, prejudice, or caprice,' therein; such words indicating that jury was swayed more or less by their feelings, which are not inconsistent with honest intention.
On the contrary, however, and as set forth in defendant's brief in this case, this court has held, following precedents established by the courts of other states, that an unlighted train of box cars or flat cars moving over or standing upon a crossing is of itself a sufficient warning of its presence, as a matter of law, even on a dark night, so as to relieve the railroad of the duty to give any further warning in such a case and that it is the duty of the motorist to maintain such a speed and lookout as to enable him to see and avoid striking the unlighted box cars or flat cars, even on a dark night. See Carlson v. Southern Pacific Co., 219 Or. 77, 346 P.2d 381 (1959), and Murphy v. Southern Pacific Co., 223 Or. 522, 355 P.2d 236 (1960), among other cases. This and other fixed and rigid rules of railroad crossing law have been criticized by legal writers.
If that be so — and we doubt it very much — the difficulty is for the lawmaking body to remedy, not the courts. As pointed out in Murphy v. Southern Pacific Co., 31 Nev. 120, 101 P. 322, the words "passion or prejudice" when applied to the action of a jury mean "anger, resentment, hate, absence of reflection, disregard of the rights of others, and kindred motives." We find nothing of the sort in the record before us.
Stipp v. Tsutomi Karasawa, Mo., 318 S.W.2d 172, 175; Phegley v. Graham, Mo., 215 S.W.2d 499, 505, 6 A.L.R.2d 382; King v. City of St. Louis, Mo.App., 155 S.W.2d 557. See Croak v. Croak, Mo.App., 33 S.W.2d 998, 1002; Thompson v. Healzer Cartage Co., Mo., 287 S.W.2d 791, 794; Murphy v. Southern Pac. Co., 31 Nev. 120, 101 P. 322, 328. There is nothing in the evidence which shows that plaintiff's bathing caused the infection.