(dissenting).
My dissent will be confined to two basic points: (a) the plaintiffs failed, as a matter of law, to establish any recognized excuse of the statutory violation; and (b), the jury misconduct.
Justification or Excuse
As Dean Keeton has written: “The only excuses which have been recognized by the supreme court are those listed in the Restatement of Torts:
“(a) the violation is reasonable because of the actor’s incapacity;
“(b) he neither knows nor should know of the occasion for compliance;
“(c) he is unable after reasonable diligence or care to comply;
“(d) he is confronted by an emergency not due to his own misconduct;
“(e) compliance would involve a greater risk of harm to the actor or to others.” 1
*859The Impson Rule was made applicable to the railroad grade crossing statute now under review by the decision of Southern Pacific Company v. Castro, 493 S.W.2d 491 (Tex.1973), and the method of submission was set out but was not followed here.
Justice Pope explained the application of the rule in L. M. B. Corporation v. Gurecky, 501 S.W.2d 300, 303 (Tex.1973), in this manner:
“The rule in Texas is that one who seeks to excuse a statutory violation must present some evidence of a permissible excuse for his statutory violation, whereupon the party with the burden of persuasion on negligence (plaintiff Gurecky) must obtain a jury finding that his adversary was negligent as measured by the common law or prudent man standard.”
Although it has been suggested by some that the Supreme Court has in effect abolished the doctrine of negligence per se,2 it has not yet receded from the five excuse or justification theories set out in Restatement § 288A.
The majority correctly recognizes the general rule that impossibility of compliance with a statute constitutes a valid excuse. The jury findings, which are referred to by the majority, indeed convict Pinner of failure to observe the requirements of Art. 6701d, § 86, Tex.Rev.Civ.Stat.Ann. (1969). Having recognized that such fact was established, I next examine the record to determine if such noncompliance was excused. Southern Pacific Company v. Castro, supra. The majority fails to set out any evidence which would raise an excuse or justification issue. Certainly by reason of Special Issue 18A the jury found that Pinner “could not by the exercise of ordinary care have stopped his vehicle . . ..” But such a reply does not establish this as fact which we can uphold without there being evidence to support it. Nor does it establish that Pinner had a legally acceptable excuse for such failure.
From my own examination of the record, I have been unable to find any evidence of probative value which would support such submission.3 There is nothing to indicate that Pinner either did stop or attempted to stop his car before he was within forty-five feet of the crossing. The record in fact would support a finding that Pinner was going 60 m. p. h. at the time of the collision. Nor is there a scintilla of evidence that Pinner encountered any of the excuses as enumerated in § 288A of the Restatement (2d) of Torts which our Supreme Court has adopted. Impson v. Structural Metals, Inc., supra. The absence of findings on excuse cannot be deemed as found in order to support the judgment. Southern Pacific Company v. Castro, supra (493 S.W.2d at 496).
Neither do I agree with the majority’s general conclusion: “ ‘Inability’ is a recognized ‘excuse’ under the RESTATEMENT OF TORTS.” The only subsection of § 288A which contains a form of the word “able” is (c), to which I assume the majority refers. Subsection (c) states: “he is unable after reasonable diligence or care to comply.” (emphasis supplied) By the clear language of this subsection, inability (or some extraction of that term) is an excuse only after the person has taken some measure to comply or was diligent in attempting to follow the statutory regulation. Again, there is no evidence which could be construed as permitting a deduction that Pin-ner was diligent or took care to comply with the statute in question prior to his violation thereof. It does not appear that “inability” by itself has reference to any of the other permissible excuses cited in § 288A. Certainly, as was recognized in *860Impson, supra (487 S.W.2d at 696), the excuses enumerated in § 288A are not exhaustive. But I do not believe that even under a liberal interpretation can it be said that “inability,” in and of itself, is a permissible excuse under our case law and the Restatement. See Comments a-j, RESTATEMENT (SECOND) OF TORTS, § 288A (1965).
There is some testimony by others that the lights on appellant’s trucks were distracting to them, but the effect of such conditions, if true, was never connected or associated with Pinner at the time of the collision. The record further does not indicate that such testimony was introduced in the posture of an excuse. I do not think this comes within the realm of “reasonable inferences” which can be made by a jury, as permitted in this State. See, e. g., Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). A jury cannot make deductions or conclusions upon circumstances of which there is no evidence for the findings must be within the range of testimony and supported by the evidence. Great American Insurance Company v. Lang, 416 S.W.2d 541, 550 (Tex.Civ.App. — Austin 1967, writ ref’d n. r. e.). Nor do I think this constitutes “some evidence” produced by the ap-pellees to which Justice Pope referred in Castro (493 S.W.2d at 498), for I am not making reference to the burden of persuasion but to the fact that one seeking mitigation of a statutory violation must present some evidence of the nature of the excuse. L. M. B. Corporation v. Gurecky, supra (501 S.W.2d at 303).
As acknowledged by Justice Walker in his concurrence in Castro, we are dealing with a statute which requires strict observance and the violation of which cannot ordinarily and readily be determined by laymen by the mere resort to common knowledge. It thus becomes even more important that evidence as to excuses be manifested and put into issue before the trier of fact. Any claimed excuse must fall within the limited classes of the statute and case law. Impson v. Structural Metals, Inc., supra.
When the record is void of any evidence, this determination becomes impossible not only for the trier of fact but also in the context of a review by an appellate court. Appellee failed to present any evidence of excuse in accordance with the standards laid down in L. M. B. Corporation v. Gurecky, supra; Impson v. Structural Metals, Inc., supra, and Southern Pacific Company v. Castro, supra. Without any such supporting evidence, I would reverse the trial court’s judgment and remand the case for new trial.
Jury Misconduct
Turning now to the jury misconduct, I find that the majority correctly states the crux of the jury discussion on attorney’s fees. The record also reflects that after Juror Dans said that Pinner’s attorney would “get his pay out of the amount” that they awarded, the other jurors stated that they knew this. As noted in the majority, this was more than “mere discussion,” and I do not believe that the jurisprudence of this State permits the conclusion that it was harmless. There was no admonition by any member of the jury that this discussion was inappropriate.
While generally the effect of improper conversations may be cured by instructions or admonitions from other jurors, Ausley v. Johnston, 450 S.W.2d 351, 355 (Tex.Civ.App. —El Paso 1970, writ ref’d n. r. e.); Pittman v. Baladez, 304 S.W.2d 601 (Tex.Civ.App.— Austin 1957), rev’d on other grounds, 158 Tex. 372, 312 S.W.2d 210 (1958), it has been held by our highest court that an admonition by a foreman to jurors discussing attorney’s fees is not sufficient to cure the harm. White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947); Texas Employers Ins. Ass’n v. Hatton, 152 Tex. 199, 255 S.W.2d 848 (1953).
A discussion of awarding attorney’s fees is not an immaterial issue. When such consideration is given in a particular case, it directly affects and necessarily alters the award which is to be given the plaintiff. The mere mention of the percentage that *861an attorney is to collect as his fee has been held to be reversible error; the rights of the defendant in such instances are materially prejudiced. Texas & P. Ry. Co. v. Gillette, 125 Tex. 563, 83 S.W.2d 307 (1935). Every case cited by the majority on misconduct as to attorney’s fees holds that reversible error was committed when a jury discussed attorney fees, and those cases deal with fact situations which are certainly less thorough and less harmful than in the instant case. See also, Central Power & Light Company v. Freeman, 431 S.W.2d 897 (Tex.Civ.App. — Corpus Christi 1968, writ ref’d n. r. e.).
It cannot be overlooked that Phillip Dans’ testimony was uncontroverted at the hearing for jury misconduct. Where a witness’ testimony was not impeached, a court is not free to ignore his statements. St. Louis Southwestern Ry. Co. v. Smithhart, 9 S.W.2d 146 (Tex.Civ.App. — Beaumont 1928, no writ); Rodman Supply Company v. Jones, 370 S.W.2d 951 (Tex.Civ.App.— Amarillo 1963, no writ).
I do not concur in the majority’s rationale that the age and earnings of Pinner mitigate or sanitize this improper discussion. No case has been found which relies upon such reasoning and such reasoning is immaterial to the issue in question. Further, I do not understand that it is of consequence that the court has reduced plaintiff’s award by over $150,000. The majority merely did what the Tort Claims Act required; i. e., placed a maximum limit of $100,000 for an individual’s recovery under the terms of the Act. By establishing this recovery at the absolute upper level permitted by legislation, the majority has exacted no “penalty” for the jury’s improper discussion. It has completely vitiated and ignored any amounts which the jury assigned as attorney’s fees.
This is not the intended result of our case law. It is no answer to the question of attorney’s fees to state that a “remittitur” can cure any harm which may have been committed. Where, as here, no determination can be made as to any definite sums which were awarded as attorney’s fees by the jury, a remittitur cannot cure the erroneous effect of the discussion of the fees. City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Comm’n App.1931, holdings approved); Houston Sports Association, Inc. v. Russell, 450 S.W.2d 741 (Tex.Civ.App. — Houston [14th Dist.] 1970, writ ref’d n. r. e.). There is no evidence as to any amounts which the jury assigned as attorney’s fees. Thus, any consideration of a remittitur or reduction in the award is not only inapplicable but also immaterial.
The discussion of attorney’s fees was pri- or to the time when the jury decided upon the amount of compensation to be awarded to the plaintiff. Where such a discussion takes place before a figure has been reached, it cannot be said that misconduct was not prejudicial to the appellant (defendant) and requires a new trial. See, e. g., Yellow Cab & Baggage Co. v. Donnell, 159 S.W.2d 946 (Tex.Civ.App. — San Antonio 1942, no writ); St. Louis Southwestern Ry. Co. v. Smithhart, supra.
The next ground of misconduct is the remarks made by Juror Vaden as to the speed that Pinner was traveling at the time of the accident. Phillip Dans testified, again uncontroverted, that Vaden questioned the trial evidence that Pinner was going 60 m. p. h. when he collided with the train. When reminded by Dans that that was the evidence in the case, Vaden replied that he was a driver’s education teacher and was familiar with the road and that “he couldn’t have been going over forty.” At the hearing, Dans stated he was a former pupil of Vaden and that no one questioned Vaden’s conclusion and that “that’s where I ended it [the discussion as to speed] because he’s smarter than what I am so I can’t argue with him.”
I do not take issue with the principles cited by the majority governing their disposition of this question. I think it is clear, however, that a juror was influenced by the above mentioned remark. Dans positively stated that the reason he did not pursue the fact that Pinner was going 60 m. p. h. was *862the fact that he considered Vaden smarter than he and that he could not argue with such intelligence. It is not dispositive to say that because Dans voted with the minority on the negligence issues, the effect on the influenced juror was “harmless.” Such logic involves deductive reasoning as to what the jurors thought, and we are not permitted to inquire into the mental processes of the jury. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944). The test is whether, upon review of the record as a whole, “injury probably resulted.” Tex.R.Civ.P. 327; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). Considering the record as a whole, the jury was influenced by an improper remark which probably caused the rendition of an erroneous verdict. See Rodman Supply Company v. Jones, supra (370 S.W.2d 953), where it was held that the “clocking” of the approach to the scene of the accident in issue by a juror was reversible error as being influential evidence outside of the record.
Both grounds of misconduct discussed above were such that a new trial should be ordered upon each ground. But, even if it could be concluded that by themselves reversible error has not been shown, certainly the cumulative effect of the misconduct requires reversal. See Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451 (1949); Sims v. McKnight, 420 S.W.2d 173 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n. r. e.), and cases cited therein.
I would reverse the judgment of the trial court and remand the case for a new trial.
. P. Keeton, “Torts,” 28 SW. L.J. 1, 2 (1974). The reference is to RESTATEMENT (SECOND) OF TORTS § 288A (1965), and the Supreme Court case referred to is Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.1972), where the Court adopted this section of the Restatement as its guide. Two scholars have written: “This case [Impson ] defines the general principles that control legally acceptable excuses and justifications.” L. Green and A. Smith, “Negligence Law, No-Fault, and Jury Trial —III,” 51 TEXAS L.REV. 207, 214 fn. 17 (1973).
. Associate Justice Steakley, joined by Justices Walker and Johnson dissenting in Gu-recky, supra; Justice Steakley dissenting in Sparkman v. State, 519 S.W.2d 852, 858 (Tex. 1975).
. I note, contrary to the form of submission suggested in both Castro and Gurecky, supra, the trial court placed the burden of proof upon the plaintiff; whereas, under the rationale of these cases, such burden rested upon the defendant.