Opinion on Rehearing.
Delivered December 10, 1898.
Battle, J.Appellee asks tbe court to allow him tbe privilege of remitting so much of tbe damages recovered.in this action as renders them excessive, and that tbe judgment as-to tbe residue be affirmed.
Tbe theory upon which a remittitur is allowed is that the-appellant has no just complaint save that tbe [damages are excessive, and that, inasmuch as tbe appellate court can say that, tbe given verdict is excessive, it can designate an amount that will not be, and give tbe successful party tbe option to remittbe excess or submit to a new trial.
Tbe judgment in this case was reversed on account of the-improper remarks of appellee’s counsel, and because the damages recovered were excessive. We cannot say that the appellee’s right to recover is free from doubt. The testimony is conflicting, and to assume that appellee had the unquestionable right to a verdict for some amount we would be compelled to hold that much of the evidence was entitled to no credence. The strongest contention of appellee’s counsel is that he was injured by the engine, and that the train could have been stopped after he was knocked down and before the engine reached him. But this contention is principally founded upon-the opinions of witnesses, which were based upon what they saw of the child under the cars, when they were from thirty-five to fifty yards distant, and while the train was moving from six to twelve miles an hour, and much excitement prevailed, and many were passing before or near them, and much existed to prevent the accuracy of their observation. As for ourselves, we are not assured as to what part of the train caused the injury, and that appellee’s contention is correct. But it can serve no useful purpose to review the evidence at length. As the cause will be remanded, it may not be proper to do so. It is sufficient to say that we do not think that this case comes within the rule which allows a remittitur to be entered.
The petition of appellee is denied