(concurring).
While I concur with Justice WALT-HALL in the disposition of this case, not being entirely in accord with some of the holdings in his opinion, I deem it not inappropriate to state my grounds for concurrence.
While’ of no special significance, it might be stated that this is the second appeal of this case. By transfer from the San Antonio Court it was before the Beaumont Court. Haney v. Texas & N. O. Ry. Co., Tex.Civ.App., 119 S.W.2d 714. A judgment in favor of defendant was reversed on the ground of conflict in the findings as to contributory negligence.
In this case appellant contends, among other things, that the verdict of the jury upon which the judgment is founded was arrived at through passion and prejudice. If this appears from the record, the judgment should not stand.
*680Passion and prejudice are sought to be deduced from, first, the alleged misconduct of the jury; second,, from the amount of damages found; third, it is charged that certain findings in the verdict are entirely against the weight of the evidence, against the overwhelming preponderance thereof, and that this established passion and prejudice ; . fourth, that the three matters before enumerated, taken together, establish passion and prejudice.
The issue of misconduct was found by the trial court against the contention of appellant. Findings of the trial court as to same are not attacked. It was certainly harmless in itself for the jury to decide and discuss “who was to blame for the accident,” and that “plaintiff was entitled to some consideration.” If this discussion was susceptible of the construction made by the trial court that the plaintiff was entitled to damages, it may create a suspicion that the jury, in answering the question, might have sought to frame their answers so as to bring about a result, but does not establish the fact. The findings negative this fact, and we think there is a support in the evidence therefor.
As to the question of damages, the amount found is large, and we think too large. In a personal injury case the question of damages nearly always is a question of opinion. There is no criterion laid down by the law for the valuation of mental suffering and physical pain. Compensation is the end sought. Opinions of men and bodies of men will always differ thereon. For these elements the amount that may be assessed is not unlimited. Unless the amount is so large as to shock the conscience, a jury is not to be convicted of passion and prejudice simply because the damages are too large. Articles 1861, 1862, R.S.1925, were in part, no doubt, passed to prevent new trials where the only error was in the award of excessive damages.
The assessed damages are large, the injury was grievous; plaintiff, a youth of eighteen, lost his leg above the knee,.two amputations were necessary; the pain and suffering were intense and prolonged; almost of necessity his capacity for earning has been materially decreased throughout the rest of his life; his earnings at the time were seventy dollars a month; he was strong and healthy and had a life expectancy of 43.5 years. The expenses reasonably accruing on account of his injuries amounted to $2,358.25. This amount is not included in the judgment, although found by the jury. It may have been same was paid by defendant before the trial. The assessment of $32,359.25 as damages, in view of the facts, we do not believe is any evidence of passion and prejudice on the part of the jury.
Complaint is made of the finding of the jury as to the sounding of the whistle in approaching the crossing. The issue was not submitted under the statutory duty as to the blowing of the whistle on approaching the crossing. The issue submitted was: “Do you find from a preponderance of the evidence that the whistle on defendant railroad company’s locomotive at the time said locomotive was approaching the highway crossing on the occasion in controversy was not blown sufficiently to give warning of the approach of said locomotive to said crossing to the traveling public generally who might then have been approaching said crossing with ordinary care along said highway in motor vehicles?” This was found in favor of the plaintiff, as were the related issues of negligence and proximate cause. An entire failure to blow the whistle is not found, but that the whistle was not sufficiently blown. Here, again, we have a matter as to which the minds of men may reasonably disagree. The evidence is that there was a heavy fog, visibility was low, and the train was about to proceed to a much-used crossing at a rate of speed of 30 miles per hour. Concede the truthfulness of all of the witnesses, and it may have been that the whistle, was not sufficiently blown to give warning to travelers on the highway. The situation was unusual; and ordinary care might have required unusual precaution in this respect. The engineer realized this, and said he blew the whistle at a point beyond the regular whistling post. The dense fog and surrounding conditions might have called for the almost continuous sounding of the whistle. It is thought that this finding does not evidence passion or prejudice on the part of the jury.
In substance it was found that the bell was not run continuously from a distance of 1,200 feet from the crossing until same was passed. Plaintiff and the driver of the truck testified when they approached the crossing before the collision neither heard the bell. From appellant’s statement under the assignment it is not clear just how far, under the evidence, the bell started ringing from the crossing. Miss Eikenberry testi*681fied she heard the bell as the train approached the crossing, but how far the train was from the crossing at such time does not appear. The same is true of the testimony of the witness J. E. Webb. The engineer does not fix definitely the distance from the crossing the automatic bell started ringing. Fireman Moser testified he started the bell at the Edinburg station. The testimony of plaintiff and the driver of the truck was admitted that they were in a position to hear the bell, and did not hear same, and is some evidence that the bell was not rung. Another question is presented, however, and that is, is the probative effect of this testimony destroyed by the positive testimony that the bell was ringing? There is some confusion and disagreement as to this in our decisions. Here, this question need not be determined, for we are considering only as to whether or not the findings of the jury were influenced by passion and prejudice. If the legal effect of the positive testimony be as contended by the appellant, the jury were not so charged — no guidance was given them in the matter. The negative testimony was admitted and the issue submitted to them. Hearsay testimony ordinarily is without probative effect. Suppose in such a case where same is admitted the jury makes a finding based on same, could it be for a moment contended that such a finding was based on passion or prejudice? It is thought not, even though the evidence clearly be insufficient to support the verdict.
The jury found the train in question was not under control. Control, as the controversy developed, depended on speed. There was no evidence that the brakes and the devices for controlling the train were not in proper order. Defendant’s engineer testified that in his judgment his speed was 30 miles an hour. There is no question but the evidence raised the issue as to the speed of the train constituting negligence when taken in connection with the low visibility, the consequence of the fog then prevailing. This finding does not evidence passion and prejudice. This is true even though the issue, together with supporting issues, might not justify a recovery.
There was a finding that at the time in question defendant did not maintain an adequate warning device at the crossing, and that same was negligence and was a proximate cause of plaintiff’s injury. It is clear at or near the crossing some sort of warning device in the nature of a wig-wag was maintained by defendant. In the statement there is no detailed description of the device. It was a bell and lighted or illuminated disc. On the occasion in question plaintiff Haney testified he was keeping a lookout and failed to either hear the bell or see the light. It is perhaps, a reasonable inference that a warning signal at a railroad crossing that can be neither seen nor heard by one approaching a crossing, a fog prevailing, is inadequate to properly warn the approach of a train along the track. The bell may have been ringing, it might have been heard by others and still might not have been heard by one approaching the crossing in a truck. There is incident to the operation of a truck necessarily some noise. It might be said this is true as to the operation of a railroad train, and that the engineer and fireman each heard the bell. To this it might be said that their position and the position of plaintiff was somewhat different. They had reason to believe that the bell was sounding there and were expecting to hear same. It seems that it would be a reasonable precaution on their part to ascertain whether the signal was functioning before proceeding across the crossing. It is not believed that this finding establishes that passion or prejudice inheres in any part of the verdict.
Issues were submitted on discovered peril. These issues are numbered 7-1, 7-1a, 7-1b, 7-1c, 7-1d, 7-1e, and 7-lf. Issues 7-1 and 7-la could, under the evidence, be answered only in the way they were answered by the jury. Under the evidence Haney was in a position of peril before the collision and he was discovered by defendant’s fireman before the collision. So as to issue No. 7-lb. Before the collision there was a realization of defendant’s fireman of Haney’s danger. The controversy arises as to the ■ finding that after the discovery and realization of Haney’s peril that by the use of ordinary care the injury could have been prevented by defendant’s employees.
The testimony of the fireman is that, on discovering the near approach of the automobile to the intersection, he shouted to the engineer to “big-hole” the train. This the engineer seems to have done, but this did not prevent the collision, although it seems same was almost averted. There is no evidence of lack of promptitude on the part of the engineer in the application of the brakes. If the collision could have been avoided it seems that some other means than slackening the speed of the train must *682have been resorted to. Plaintiff contends that a blast of the whistle would have done it. This, I think, is a mere conjecture. It is thought that the issue of discovered peril was not raised by the evidence.
If the evidence was insufficient to raise the issue, it was not an issue in the case. It should not have been submitted to the jury.
If an improper finding by the jury on an issue not in the case vitiates findings on the real issues in the case, then one of the purposes of submission on special issues is defeated. Piad this case been submitted on a general charge and the issue of discovered péril submitted, perhaps it would necessitate a reversal of the case. But here we have a judgment founded on material issues arising under the pleadings and evidence. Each and every member of the jury concurred in arriving at a verdict on these material issues.
If we are correct in the holding that the submission of discovered peril was not justified by the evidence might passion and prejudice on the part of the trial judge be as logically inferred from the improper submission of the issue as on the part of the jury from an improper finding thereon? Passion and prejudice are not to be presumed, and it may well be that the finding df the jury came about through a misapprehension of the factual elements involved.
' The finding on one other issue is assailed-as being against the great prep'ondérahce of the evidence, and hence evidencing the taint of passion and prejudice. The jury found that no flagman or watchman was maintained at the crossing; that same was negligence and a proximate cause of the injury to plaintiff. Neither watchman nor flagman was maintained at the crossing under the undisputed evidence. The factual basis giving rise to a duty to have a flagman at the crossing was not submitted. It is unnecessary to decide whether on this finding a recovery can be sustained. The finding of the jury does not evidence either passion or prejudice.
Considering together the alleged misconduct of the jury, the amount of damages assessed, and the findings of the jury on the issues, the taint of passion or prejudice in the verdict is not fairly deducible. The true rule in this matter is laid down in World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962. Had the jury found that the whistle .was not blown, the bell not rung, or that'no warning device was maintained, a different question might be presented: These are not the findings. The findings of a jury may not be sustained by the evidence and still be free from the taint of passion and prejudice. This rule, we take it, is fairly deducible from World Oil Company v. Hicks, supra.
Special issues No. 1, 1-A and 1-B, and the findings of the jury thereon were as follows:
“No. 1. Do you find from a preponderance of the evidence that defendant railroad company’s train was being operated’ at an excessive rate at the time it approached the highway crossing on the occasion in controversy? Answer ‘yes’ or ‘no.’ ”
“We, the jury, answer Yes.”
“No. 1-A. Do you find from a preponderance of the evidence that it was negligence, as that term ‘negligence’ has been hereinbefore defined, on the part of the defendant railroad company to so operate its train at an excessive speed, if you have found it did so operate said train in answer to the foregoing Issue No. 1 ? Answer ‘yes’ or ‘no.’ ”
“We, the jury, answer Yes.”
“No. 1-B. Do you find from a preponderance of the evidence that such negligence, if any you have found in response to the foregoing Issue No. 1-A, was a proximate cause, as that term ‘proximate cause’ has been hereinbefore defined, of the injuries to plaintiff Conrad Haney? Answer ‘yes’ or ‘no.’ ”
“We, the jury, answer Yes.”
It is held that the evidence was ample to support the findings of the jury that the rate of speed at which defendant’s train approached the crossing constituted negligence, and that such negligence was a proximate cause of plaintiff’s injury. The surrounding facts and circumstances are undisputed. Fog rendered visibility low. In the opinion of the engineer the train was operated at a speed of thirty miles an hour. If these findings are sustained by the evidence, on the issues above quoted, plaintiff established the liability of defendant.
Error as to the form of submission of special issue No. 1 is assigned. After copying the issue, the proposition is as follows: “The same gave the jury no standard of comparison or criterion to go by, and permitted the jury to speculate thereon and to decide the issue on the logic, *683and that alone, that if the train had not been there, the accident would not have happened, and that if the train had run slower, it would not have reached the point before the plaintiff had passed the same,- and it was therefore error for the Court to submit said issue and its subordinate issues, Nos. 1-A and 1-B, as to negligence and proximate cause, respectively, over the objection of the defendant that it authorized the jury to answer the same in the affirmative on the logic that if the train had not been there, the accident would not have happened.”
Appellant in the trial court objected to this issue as follows:
“Defendant objects to the submission of Issue No. 1 and its subordinate issues Nos. 1-A and 1-B relating to whether or not the defendant’s train was operated at ah excessive speed on- the occasion fin question, and defendant says: '
“(a) That there'is "no évidence in this record authorizing the submission of said Special Issue to the jury.
“(b) That there is in the evidence no criterion as to the rate of speed that defendant’s train should have been driven and such question by reason of lack of evidence authorizes the jury to speculate upon the rate of speed, not by reason of any evidence in the record, but by reason of what they may think or féél individually or as a whole, and the rate of speed at which a train should be operated not being a matter of common knowledge.
“(c) That the question is so framed as to authorize the jury to answer the same in the affirmative on the well-known logic that if the train had not been there, the accident would not have happened, and, therefore, the answer would not be sufficient to authorize the submission of Issue No. 1-A as to negligence, and the submission to the jury of Issue No. 1-A as to negligence is wholly unauthorized, even if the answer of the jury to Question No. 1 should be in the affirmative.”
Now the gravamen of appellant’s objection to the issue was, that there was no-evidence in the record showing that the train was operated, on the ' occasion in question, at an excessive rate of speed. After all, the objection goes rather to the lack of evidence to support the issue than to its form. It is thought that what was really meant was, that the evidence failed to show what was the proper rate of speed to operate a train under -thé circumstances involved. Of course,' the 'proposition assails the issue on the ground that no direction was given the jury as to what would constitute an excessive rate of speed. This, however, was not the objection before the trial court. If there, is any error in the form of special issue No. 1, the objection urged was insufficient te-cali attention to the vice, if any, therein.
The case of Fort Worth & R. G. Ry. Co. v. Sageser, Tex.Civ.App., 18 S.W.2d 246, 250, is cited in support of appellant’s proposition. In the opinion the issue 'is not set forth. It is stated the jury, in answer to special issue No. 1, found the, 'defendant, in the -operation of its traiii 'at an excessive rate of speed, guilty of neglil gence which was the proximate cause of Sageser’s death.' The issue -is- criticized in that same is said to be duplicitous) further, that the word “excessive” tended to confuse the jury. It is thought that -the confusion arose from the failure .to delfine or explain insome manner what was an excessive rate of speed. Of course, the “ordinary care”- standard would apply. In the instant case appellant’s.-pro,ppsjfipn is, “the same gave the-jury .no, standard of comparison or criterion to go by.”: ¡, .1⅛§ objection was tl^at there, is in evidence.no criterion as to the rate of speed. - '
There is considerable similarity between the case of. Fort Worth & R. G. Ry. Co. v. Sageser, supra, and the case under .consideration here. It. was a .cross.ipg acci7 dent between a train and ap automobile, It was there said: “We'believe-the-plaintiffs’ pleadings properly based their right to recovery on two propositions: First, that the rate of speed, whatever it was, at which appellant’s agents operated said train, constituted negligence under the circumstances; and,, second, that such negligence proximately'_ caused the death of Miller Sageser. The plaintiffs’ pleadings clearly draw such issues, and it 'is alleged thaf the train was operated gt ‘about 45 miles per hour.’ ” Here, we think, practically the same issues were involved and passed upon by the jury, namely:. Tf"tie rate of speed at which appellant’s' train approached the crossing in ‘question constituted negligence, was such' négligerife a proximate cause of' plaintiff’s irijuty? This, we think, established liability and the finding was sustained by the1 evidence;
I concur with the holding of ⅝⅜0 WALTHALL as to the excessiveness of *684the verdict, and that the remittitur of $10,-000 should -be required as condition to the affirmance of the judgment.