On Rehearing.
WALTHALL, Justice.In the opinion this court affirmed the judgment of the District Court, but upon the condition that the appellee, within twenty-five days, would file a remittitur in the amount of $10,000.
The appellee, within twenty-five days, filed in this court a motion to set aside the judgment insofar as it required a re-mittitur as a condition to the affirmance of the judgment, and to grant him a rehearing and in all things affirm the judgment.
The order of this court in ordering the remittitur was clearly error, as this court was without power and jurisdiction to require a remittitur, it not appearing from the record that the verdict was in any way influenced by passion and prejudice.
We sustain appellee’s motion to- set aside the order requiring the remittitur as a condition to the affirmance of the judgment.
It has often been truly said that it is difficult, indeed, for courts or jurors to set a monetary compensation for injuries sustained. The facts are so different in each case. In this case the issue of compensation was submitted to a jury on the evidence, and it was solely the duty of the jury to state in its verdict the compensation the appellee should receive, in the event the Railroad was found to be negligent in causing appellee’s injuries.
We fully considered the evidence on each issue submitted to the jury, and while we thought, in writing the opinion, it was doubtful whether some of the issues submitted should have been submitted, we concluded that the jury findings on the issues of negligence and proximate cause were well sustained on the undisputed rate of speed at which the train was moved as it crossed the highway.
We come now to consider appellant’s, the Railroad’s, motion for a rehearing and to reverse and remand the cause.
The grounds urged for reversal are that this court erred in overruling 'its assignments of error discussed in the opinion. It is submitted and insisted by appellant that because this court held that several of the issues submitted to the jury should not have been submitted, not having sufficient support in the evidence, that the jury rendered a verdict which is excessive, and that this court, in view of such findings, held that appellant had not received a fair trial at the hands of the jury.
We do not think that every excessive verdict would necessarily indicate an unfair trial, or that an excessive verdict would indicate, as a matter of law, that the jury’s verdict necessarily was influenced by passion or prejudice. But the rule seems to be that if the verdict is grossly excessive, that fact may be regarded to some extent as reflecting the jury’s mind in arriving at the verdict. World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962. We do not say that the verdict is so grossly excessive as to make the rule applicable.
In writing the opinion we thought that under the undisputed testimony of the train crew as to the speed of the train in crossing the highway, the darkness of the morning, and the added darkness caused by the fog, to the extent that the driver of the automobile could not, or at least did not, see the wig-wag, and the absence of any person at the crossing to warn travelers of the approach of the train, indicated to this court that appellant was negligent vel non, in driving the train across the highway at a speed of thirty miles -an hour.
We may be in error in holding, as in the opinion, that the verdict and judgment based thereon is excessive. We have again reviewed the entire case, an'd while we thought the verdict was excessive, it certainly is not so grossly excessive as to suggest a reversal solely on that alone. There is nothing in the record, as we view it, to indicate that the jury was in the least biased or prejudiced. While the compensation is large, so was the injury.
We have reconsidered each of appellant’s grounds for reversal in its brief and in its motion for a new trial and not discussed, and they are overruled.
We have concluded to overrule appellant’s motion for a new trial.
The case is affirmed.