dissenting.
Upon appellees’ motion for rehearing, I find that I disagree with the majority’s holding that the trial court properly disregarded the jury’s finding of gross negligence and properly deleted the award of punitive damages. Accordingly, I now respectfully dissent.
In the instant case, the jury found that PTRA’s inadequate flagging of the crossing and failure to control the crossing constituted gross negligence. PTRA filed a motion asking the trial court to disregard this jury finding. The trial court granted PTRA’s motion and disregarded this finding. In conjunction with disregarding the jury’s finding as to gross negligence, the *514trial court deleted the jury’s award of punitive damages. The majority upholds the trial court’s ruling by finding no evidence to support the jury’s finding of gross negligence.
In reviewing the trial court’s grant of a motion for judgment n.o.v., an appellate court must view the record in the light most favorable to the jury’s finding, considering only the evidence and inference supporting that finding. Navarette v. Temple Indep. School Dist., 706 S.W.2d 308, 309 (Tex.1986). If more than a scintilla of competent evidence supports the finding, we must reverse the trial court’s judgment n.o.v. Id.
Unlike the majority, I find more than a scintilla of evidence supporting the jury’s finding of gross negligence. As stated by the majority, gross negligence is a lack of care that amounts to “conscious indifference” to the decedent’s rights, welfare, or safety. See Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981). In the instant case, the record contains testimony that the flagman stood on the side of the road and not in the center. The driver and passenger of the oncoming vehicle, who were in the closest lane to the flagman, testified that they did not see the flagman or the train until they were upon the crossing. After this vehicle crossed the crossing, the flagman stopped flagging and climbed aboard the train despite his awareness that the decedent’s vehicle had not slowed down. The jury could have determined that the decedent’s failure to begin reducing his vehicle speed indicated that the decedent had not observed the flagman’s warning and that, despite this indication, the flagman discontinued any warning of the approaching train. This is some evidence that PTRA acted with conscious indifference to the safety of the decedent.
Because some evidence supports the jury’s finding of gross negligence, the trial court erred in granting appellant’s motion for judgment n.o.v. and in disregarding the jury’s finding of gross negligence and its award of punitive damages. I would sustain appellees’ cross-point and render judgment that appellees recover the punitive damages awarded by the jury.