WILSON v. FREEMAN, 185 S.W. 993

YANTIS, J. This suit was instituted by C. W. Wilson, plaintiff in error, in the district court of Bexar county, against T. J. Freeman, receiver, and the International & Great Northern Railroad Company, to recover damages for personal injuries received by him while he was rendering services to said receiver and said railroad as an em-ployé. The suit was dismissed as to the International & Great Northern Railroad Company.

The plaintiff in error, Wilson, alleged that while he was removing cross-ties from the roadbed of said railroad with a pick which had been furnished by the defendant in error a sliver of steel, or metallic substance, slivered off from said pick and entered his left eye, causing total blindness therein.

Several grounds of negligence were alleged by the plaintiff in error, but only one of the grounds pleaded was presented to the jury, and that was “the defective and insufficient condition” of the pick, by reason of which condition “a piece of steel slivered off from said pick and struck plaintiff in the left eye.” It was alleged by the plaintiff in error that by reason of such negligence he had lost the sight of his left eye, and that “the right eye has also become injured and affected, that it is only a question of time when he will also lose the sight of his right eye, and he will become totally blind.” A verdict was rendered in favor of the plaintiff in error for $20,386.05.

An appeal was taken by the receiver, Freeman, to the Court of Civil Appeals for the Fourth District. That court held that no error was committed in the trial of the case in the district court, but held that the verdict was excessive, and that it could not suggest the amount of the excess by reason of the circumstances of the case; that the evidence did not warrant a recovery for total blindness, and it was only upon this theory that the jury could have found so large a recovery, which we construe to be a clear holding that the evidence was insufficient to support so large a sum as was found by the jury. 149 S.

W. 413. The plaintiff in error, C. W. Wilson, presented to this court his petition for writ of error, which was granted; this court entertaining the view that

article 1631, Vernon’s Sayles’ Statutes, is mandatory in its requirement that, when the verdict is found excessive by the Gourt of Civil Appeals, it is the duty of that court to indicate the amount of the excess, and to allow a remit-titur thereof, if filed within the time fixed by it. Said

article is as follows: “In all civil cases now pending, or that may hereafter be appealed to any Court of Civil Appeals of this state, and such court shall he of the opinion that the verdict and judgment of the trial court is excessive, and for that reason only, said cause should be reversed, then it shall be the duty of such Court of Civil Appeals to indicate to the party in whose favor such judgment was rendered, or his attorneys of record, the amount of the excess of such verdict and judgment; and said court shall, at the same time,' indicate to such party, or his attorney, within what time he may file a remittitur of such excess; and, if such remittitur shall be so filed, then the court shall reform and aflirm such judgment in accordance therewith; if not filed as indicated, then to be reversed.” We think said statute is mandatory, and that the Court of Civil Appeals should not have reversed and remanded the case upon the ground alone that the verdict was excessive.

True, it is difficult to ascertain the amount of the excess, but this difficulty arises in most cases of excessive verdicts.

Eor instance, if a verdict is excessive on account of the passion and prejudice of the jury, aroused by inflammatory speech, it is difficult, and generally impossible, to ascertain, with accuracy, what portion of the verdict was assessed because of the influence of inflammatory speech, and what portion of the verdict was based on the proper elements of damage, legally recoverable; or if the verdict assessed for the loss of a limb, or for some similar injury, is excessive, still it is difficult to ascertain with certainty, the exact amount of the excess.

All the Court of Civil Appeals can do, and all that is required of it to do, by said statute, is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess. The court must first determine what amount would be reasonable, before it can determine what amount would be unreasonable. Ry. v. Syfan, 91 Tex. 502, 44 S. W. 1064.

Having determined that the verdict is excessive, or unreasonable, it is necessarily implied that the court has decided upon an amount that would be reasonable compensation for the injury which was actually suffered, in which event it should authorize a remittitur of the excess above the amount which would be reasonable compensation for the injury, in accordance with its sound judgment. We think that in the practical administration of justice this is all that is required of the court to do in such cases, but we believe this much is the mandatory requirement of the statute quoted.

It is insisted that we should hold the verdict not excessive, and aflirm the judgment of the district court for the full amount. It is not within our province to do this. The question of the excessiveness of a verdict in this character of suit is purely a question of fact, upon which the judgment of the Court of Civil Appeals is final. I. & G. N. R. R. Co. v. Goswick, 98 Tex. 480, 85 S. W. 785. We construe the holding of the Court of Civil Appeals to be a finding that the evidence is insufficient to authorize a recovery for the amount of this verdict.

It is clearly not a holding that there was “no evidence” to support the verdict in such amount, hut merely a holding that the evidence was insufficient. This does not present a law question. The jurisdiction of questions of fact is final under our statute in the Court of Civil Appeals. If the Court of Civil Appeals had held that there was “no evidence," a law question would have been presented; but it is otherwise when it has only held the evidence is insufficient. In the latter instance its judgment is final, and we have no power to disturb it.

We are not called upon to pass on the several assignments of error presented by tbe defendant in error in the Court of Civil Appeals, as requested by it, since if, when the Court of Civil Appeals indicates, in accordance with this opinion, the amount of excess contained in the judgment, the plaintiff in error does not file a remittitur within the time fixed by the Court of Civil Appeals, the case will by its order stand reversed and remanded for another trial on account of the excessive verdict. In such event the alleged errors now complained of may not arise on another trial.

If the remittitur should be filed by the plaintiff in error, the judgment of the Court of Civil Appeals may he appealed from to this court by the defendant in error, by petition for writ of error; the judgment of the Court of Civil Appeals not becoming final until it takes action in compliance with the holding herein indicated. It will only be appropriate for this court to pass upon such questions as may be then presented in the petition for writ of error, should one be presented.

We do not feel called upon to pass upon them at this time, as our action on such questions would not be final, and we would probably be again called upon to pass on the same questions. It follows that the judgment of the Court of Civil Appeals, which reversed and remanded the cause to the trial court, should be reversed and remanded to the said Court of Civil Appeals, for further action by it in accordance with this opinion. @=^Uor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes