This is a personal injury suit. On December 3, 1933, while appellee, Conrad Haney, was riding in a truck with a trailer, driven by Vollie Adair, the truck came in collision with a freight train of the Texas & New Orleans Railroad Company at a railroad crossing with a public highway, near the town of Edinburg, Hidalgo County, Texas, and in which collision Conrad Haney received the injuries for which he sues.
The injuries sustained by Haney, as alleged, are that his left leg and the flesh, bones, muscles and ligaments thereof, were crushed, torn and broken to such extent that it was necessary to amputate his left *678kg' at or about the knee joint; that thereafter it was necessary again to amputate the left leg six inches above the knee joint; that in the collision he sustained injuries to his head, scalp, skin and bones of his head, and that as a result of said injuries he is permanently injured and made a cripple for life.
The evidence shows that at the time of his injuries plaintiff was healthy and strong, and was earning seventy dollars per month; he alleges that as a result of his said injuries his earning capacity has been diminished, if not destroyed. He alleged that by reason of his injuries he suffered and still suffers physical and mental pain and will continue to do so; that because of his injuries he incurred hospital, medical and nurses’ expenses and doctors’ bills, which he itemizes, and which aggregate $2,358.25.
Plaintiff alleges as a proximate cause of his injuries each of the following grounds of negligence, and each of which the court submitted to the jury, substantially as alleged, in special charges, namely: operating the train at an excessive rate of speed at the time it approached the highway crossing in controversy; failure to blow-tile whistle sufficiently to give warning to the traveling public of the approach of the locomotive to the highway crossing; failure to ring the bell continuously during the time the locomotive was approaching from a distance of 1,200 feet and passing the highway crossing; that the railroad train as it approached the highway crossing on the occasion in controversy was not under control of the operators thereof; failure to have at the crossing of the highway in question an adequate signaling device sufficient to give warning to the traveling public generally who might then have been approaching said crossing with ordinary care in motor vehicles; failure to have a human flagman at the crossing in question on the occasion in controversy to give warning of the approach of the train at said crossing to the traveling public generally who might then have been approaching said crossing with ordinary care in motor vehicles; discovered peril of plaintiff and failure of the fireman to use such means at his command to prevent injuring plaintiff; the collision was an unavoidable accident; was the train driven at a speed such that it could not be brought to a stop in the distance withim which the occupants thereof could see and distinguish objects within the range of the headlights on said motor vehicle. The jury found all issues of negligence as- ’ signed and submitted in favor of the plaintiff, and that each was a proximate cause of the injuries plaintiff sustained.
The court submitted and the jury found all issues of contributory negligence in favor of plaintiff.
The jury found that plaintiff sustained damages by reason of his injuries and assessed his damages at $32,359.25.
The court received the verdict and entered judgment in accordance therewith, that is, entered judgment for $30,000, the remaining unpaid amount of the verdict.
On defendant’s motion for a new trial, which embraced grounds of alleged misconduct of the jury, the court made findings of fact to the effect that the foreman read to the jury the charge of the court, then propounded to the jury the following questions: “Whose fault was the accident?” or “Who was most to blame for the accident?” or “Is Conrad Haney entitled to some consideration?” and that all of the jurors indicated either that they thought the railroad was at fault for the accident, was more to blame for the accident, or that Conrad Haney was entitled to some consideration, according to the question propounded. The court found that the foreman then read again each issue and that as each issue was reached the jury agreed upon the answer thereto, but that the answers were not, on said reading, written down. The court found that then the foreman for the third time read over each issue to the jury and that on said reading, as each issue was reached, the jury’s answer thereto was written down according to the way they agreed to answer the same at the second reading of the issues. The court found that on the third reading there was inserted, in answer to issue No. 7, the amount of the damages found by the jury. The court found that the amount of the damages was arrived at substantially in the following manner: the jury first voted on whether or not they would find $40,000 as the amount of the damages. Only about three of the jurors voted this amount. The court found that the jury then voted on $35,000 as the amount of the damages and that only five or six of the jurors voted for said amount. The court found that then the jury voted upon $30,000, in addition to hospital, medical and doctors’ expenses, as the amount of the damages, and that the jury agreed upon $30,000 in addition to the $2,359.25 doc*679tors’, hospital, etc.; expenses, as the damages, and thereupon wrote down $32,359.-25 as the amount of the damages. The court made other findings which we think immaterial, but found that no such misconduct of the jury was shown as would warrant setting aside 'the verdict, and overruled the motion.
Opinion
Appellant assigns error in overruling its motion for a new trial for the reason that the amount of $30,000 assessed as damages by the jury was so exorbitant that when coupled with the misconduct of the jury in first deciding the .questions stated by the court in passing upon appellant’s motion for a new trial, and stated above, before specifically answering the questions submitted to them, as found by the court, and further coupled with the fact that the answer of the jury with reference to the failure to blow the whistle, ring the bell, have the train under control, adequate signaling device, a human flagman at the crossing, and questions of discovered peril, were so contrary to the preponderance and weight of the evidence, the same show such extreme passion and prejudice against defendant on the part of the jury that it could not be considered by reasonable minds that defendant had received a fair trial.
The trial court heard the evidence in considering the motion for a new trial and found that there was no misconduct on the part of the jury in the matter charged in the motion. We think the evidence sustains the court’s finding as to misconduct of the jury.
We think, however, the jury’s findings on the issues of negligence and proximate cause referred to in the assignment are not sustained by the evidence. The evidence shows, we think, by several disinterested witnesses and the train crew that the train whistle was blown, the bell was rung, no evidence to show the train was not under , control. The evidence shows adequate signaling device; the evidence does not show the necessity for a human flagman at that highway crossing, nor is the evidence sufficient to show discovered peril. The only evidence in the record to show that the whistle was not blown and the bell was not rung was that plaintiff did not hear either, plaintiff did not see the wig-wag or wigwag posts; the evidence, by photograph and otherwise, shows that both were there. The evidence shows the accident occurréd very early in the morning of December 3rd, when it was yet dark, and there was a heavy fog.
The court submitted the issue of excessive speed at which the train approached the highway crossing. The court in the charge to the jury gave no standard of comparison or criterion for the’.jury to go by in deciding the issue, nor was any requested. The jury found the issue in ap-pellee’s favor. We think we cannot say, in view of all the evidence in the case, the jury’s finding on the issue of excessive speed was wholly speculative.
We have carefully considered the entire record of more than three hundred pages of evidence and have concluded that the only real issue in the case is the question of the amount of the verdict. Is it excessive? We have concluded that we.should not set the 'judgment aside and grant ⅛ new trial on any of the issues ‘ presented. We have concluded that the verdict is excessive. . ; , ’
If the appellee will enter a remittitur o.f $10,000 within twenty-five days from the date of filing this opinion the case will be affirmed; if no remittitur is made, the judgment' will be set aside and a new triál granted.
We have considered the assignments not specifically discussed, and they are each overruled.