Moose, Chief Justice.
The gravamen of this action is that appellee, the plaintiff in the court below, while he was endeavoring, in the proper discharge of his duty as a brakeman on one of appellant’s trains, to couple two of appellant’s cars on its side track, at Lindale depot, Smith county, fell into an open ditch across said track, whereby, without negligence or fault on his own part, as he alleges, he was most grievously injured.
Though other minor questions are incidentally suggested in the record, a careful analysis of it shows that, unless there was error in the court below touching one or more of the three points discussed by appellant’s counsel, the judgment should he affirmed. These points are—
1. That it was not negligence on the part of the appellant to construct or permit the continuance of its road-bed with the open ditch under its track into which appellee fell.
2. If it was negligence on the part of appellant to leave the [260]*260ditch in question open, appellee, in stepping into it, was guilty of contributory negligence.
3. The amount of damages given appellee by the jury is so grossly excessive that a new trial should have been granted.
The jury were correctly instructed by the court that appellee was not entitled to a verdict unless the testimony should lead them to decide both the first and second of the above propositions in his favor. Whether appellant’s track was constructed in the manner it should have been, or was in such condition for the proper discharge of the duties which devolved upon appellee by reason of his employment as he had a right to expect; or whether appellee was guilty of negligence in not having informed himself as to the condition of the track) and especially that part of it where he was required to couple the cars; or whether he was guilty of negligence in the manner in which he conducted himself while endeavoring to effect the coupling, were, unquestionably, questions of fact to be determined by the jury. (T. and P. R. W. Co. v. Murphy, 46 Tex., 356; Curtiss v. The Rochester and S. R. R. Co., 20 Barb., (Sup. Ct.,) 282; Hegeman v. The Western R. R. Co., 16 Barb., (Sup. Ct.,) 353.) The court, we think, fully and fairly instructed the jury upon the law applicable to their determination. The charge given to the jury seems to us fully as favorable to appellant as could have been asked of the court. The evidence upon each of the questions involved in these propositions is strongly conflicting. In the absence of any apparent reason to discredit the correctness of the conclusions of the jury in respect to them, their verdict cannot be disturbed.
' As regards, the other question, we have had much more difficulty in reaching a satisfactory conclusion. The amount of damages assessed by the jury, $12,000, certainly seems to us exeeptionably large. There was no evidence before the jury of the amount or payment of a medical bill, or other special expenses incurred by appellee by reason of his injuries. We must, therefore, infer, and especially in view of [261]*261the clear and pointed charge of the court on this branch of the case, that the jury regarded the'amount found by them as the proper estimate of, first, “ the value of the time lost by the plaintiff during the period necessary for his cure and while disabled from his injuries to work and labor, talcing into consideration the nature of his business and the value of his services in conducting the same; second, fair compensation for the mental and physical suffering caused by the injury; third, the probable effect of the injury in future upon his health and use of his limbs, and his ability to labor and attend to his affairs, and generally any reduction of his power and capacity to earn money and pursue the course of life which he might otherwise have done.” (20 Barb., (Sup. Ct.,). 282; Fields’ Law of Dam., secs. 614, 615, 638, and cases cited.)
The evidence shows that the appellee’s injuries were of a permanent character. That they had occasioned him great physical and mental suffering, and would continue to do so for the remainder of his life, is beyond doubt. They certainly were of a most grievous and perilous nature, necessitating a surgical operation extremely critical and often fatal, even when performed by the most skillful surgeons. The law furnishes no fixed or defined standard for the guidance of the jury in awarding compensation for such injuries. Unless we say that an action should not lie for an injury for which there is no pecuniary measure of comparison, the amount of damages to be awarded in such cases must be left to what may reasonably be inferred to be the general sense of right and justice of the community, as indicated by the verdict of a jury of twelve men, ordinarily composed,of persons engaged in different occupations and pursuits, and representing all grades and conditions of social life.
But while so broad a discretion is necessarily committed to the jury in fixing the amount of damages for such injuries as those referred to, it is, unquestionably, not without limit or control. Where the verdict appears to be palpably and [262]*262manifestly excessive, it is not only within the power, but. is, unquestionably, the duty of the court in which the case is tried to set aside the verdict and send the case to another jury; and if it is made to appear here that the court below erred in refusing to do so, this’ court should reverse and remand the case for another trial. While, however, the right of the court to set aside the verdict for this reason is in some instances absolutely essential to the proper administration of justice, and should be exercised without hesitation in all cases where the facts and circumstances demand it, yet it is never done except with the utmost circumspection and caution. The court should not interfere merely because it thinks the verdict too large. It is, unquestionably, one of the peculiar duties of the jury to assess damages; and because the law furnishes no legal rule for their admeasurement it does not warrant, but, on the contrary, should rather restrain the court from substituting its sense of what would be a reasonable compensation for the injury complained of for that of the jury. As is said by a standard elementary author, in treating of this subject: “ The law favors the presumption that the jury are actuated by pure motives. It, therefore, makes every allowance for different dispositions, capacities, views, and even frailties in examining heterogeneous matters of fact, where no criterion can be supplied; and it is not until the result of the deliberations of the jury appears in a form calculated to strike the understanding and impress no dubious conviction of their prejudice and passion that courts have felt themselves compelled to interfere.” (Graham on New Trials, 452.) And, says Kent, Ch. J., in Coleman v. Southwick, 9 Johns., 45, “ The damages must be so excessive as to strike mankind at first blush as being beyond all reason unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to [263]*263draw the line; for they have no standard by which to ascertain the excess.”
These citations are no doubt more directly applicable to cases of vindictive damages than to actions such as this, where the recovery should be merely compensatory, although the law furnishes no legal measure of compensation.
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Moose, Chief Justice.
The gravamen of this action is that appellee, the plaintiff in the court below, while he was endeavoring, in the proper discharge of his duty as a brakeman on one of appellant’s trains, to couple two of appellant’s cars on its side track, at Lindale depot, Smith county, fell into an open ditch across said track, whereby, without negligence or fault on his own part, as he alleges, he was most grievously injured.
Though other minor questions are incidentally suggested in the record, a careful analysis of it shows that, unless there was error in the court below touching one or more of the three points discussed by appellant’s counsel, the judgment should he affirmed. These points are—
1. That it was not negligence on the part of the appellant to construct or permit the continuance of its road-bed with the open ditch under its track into which appellee fell.
2. If it was negligence on the part of appellant to leave the [260]*260ditch in question open, appellee, in stepping into it, was guilty of contributory negligence.
3. The amount of damages given appellee by the jury is so grossly excessive that a new trial should have been granted.
The jury were correctly instructed by the court that appellee was not entitled to a verdict unless the testimony should lead them to decide both the first and second of the above propositions in his favor. Whether appellant’s track was constructed in the manner it should have been, or was in such condition for the proper discharge of the duties which devolved upon appellee by reason of his employment as he had a right to expect; or whether appellee was guilty of negligence in not having informed himself as to the condition of the track) and especially that part of it where he was required to couple the cars; or whether he was guilty of negligence in the manner in which he conducted himself while endeavoring to effect the coupling, were, unquestionably, questions of fact to be determined by the jury. (T. and P. R. W. Co. v. Murphy, 46 Tex., 356; Curtiss v. The Rochester and S. R. R. Co., 20 Barb., (Sup. Ct.,) 282; Hegeman v. The Western R. R. Co., 16 Barb., (Sup. Ct.,) 353.) The court, we think, fully and fairly instructed the jury upon the law applicable to their determination. The charge given to the jury seems to us fully as favorable to appellant as could have been asked of the court. The evidence upon each of the questions involved in these propositions is strongly conflicting. In the absence of any apparent reason to discredit the correctness of the conclusions of the jury in respect to them, their verdict cannot be disturbed.
' As regards, the other question, we have had much more difficulty in reaching a satisfactory conclusion. The amount of damages assessed by the jury, $12,000, certainly seems to us exeeptionably large. There was no evidence before the jury of the amount or payment of a medical bill, or other special expenses incurred by appellee by reason of his injuries. We must, therefore, infer, and especially in view of [261]*261the clear and pointed charge of the court on this branch of the case, that the jury regarded the'amount found by them as the proper estimate of, first, “ the value of the time lost by the plaintiff during the period necessary for his cure and while disabled from his injuries to work and labor, talcing into consideration the nature of his business and the value of his services in conducting the same; second, fair compensation for the mental and physical suffering caused by the injury; third, the probable effect of the injury in future upon his health and use of his limbs, and his ability to labor and attend to his affairs, and generally any reduction of his power and capacity to earn money and pursue the course of life which he might otherwise have done.” (20 Barb., (Sup. Ct.,). 282; Fields’ Law of Dam., secs. 614, 615, 638, and cases cited.)
The evidence shows that the appellee’s injuries were of a permanent character. That they had occasioned him great physical and mental suffering, and would continue to do so for the remainder of his life, is beyond doubt. They certainly were of a most grievous and perilous nature, necessitating a surgical operation extremely critical and often fatal, even when performed by the most skillful surgeons. The law furnishes no fixed or defined standard for the guidance of the jury in awarding compensation for such injuries. Unless we say that an action should not lie for an injury for which there is no pecuniary measure of comparison, the amount of damages to be awarded in such cases must be left to what may reasonably be inferred to be the general sense of right and justice of the community, as indicated by the verdict of a jury of twelve men, ordinarily composed,of persons engaged in different occupations and pursuits, and representing all grades and conditions of social life.
But while so broad a discretion is necessarily committed to the jury in fixing the amount of damages for such injuries as those referred to, it is, unquestionably, not without limit or control. Where the verdict appears to be palpably and [262]*262manifestly excessive, it is not only within the power, but. is, unquestionably, the duty of the court in which the case is tried to set aside the verdict and send the case to another jury; and if it is made to appear here that the court below erred in refusing to do so, this’ court should reverse and remand the case for another trial. While, however, the right of the court to set aside the verdict for this reason is in some instances absolutely essential to the proper administration of justice, and should be exercised without hesitation in all cases where the facts and circumstances demand it, yet it is never done except with the utmost circumspection and caution. The court should not interfere merely because it thinks the verdict too large. It is, unquestionably, one of the peculiar duties of the jury to assess damages; and because the law furnishes no legal rule for their admeasurement it does not warrant, but, on the contrary, should rather restrain the court from substituting its sense of what would be a reasonable compensation for the injury complained of for that of the jury. As is said by a standard elementary author, in treating of this subject: “ The law favors the presumption that the jury are actuated by pure motives. It, therefore, makes every allowance for different dispositions, capacities, views, and even frailties in examining heterogeneous matters of fact, where no criterion can be supplied; and it is not until the result of the deliberations of the jury appears in a form calculated to strike the understanding and impress no dubious conviction of their prejudice and passion that courts have felt themselves compelled to interfere.” (Graham on New Trials, 452.) And, says Kent, Ch. J., in Coleman v. Southwick, 9 Johns., 45, “ The damages must be so excessive as to strike mankind at first blush as being beyond all reason unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to [263]*263draw the line; for they have no standard by which to ascertain the excess.”
These citations are no doubt more directly applicable to cases of vindictive damages than to actions such as this, where the recovery should be merely compensatory, although the law furnishes no legal measure of compensation. We do not, therefore, make these quotations to indicate a rule of action which should guide the court where a new trial is sought for excess in the verdict, even in cases to which they more directly refer, but to indicate the extreme reluctance which is always shown by courts and jurists of highest authority in interfering with the assessment of damages by juries.
But it is unnecessary to protract this opinion to greater length. We will merely add, in conclusion, that although we entertain serious doubts whether the amount of this verdict did not result from a feeling which seems to have taken hold of the popular mind, as is plainly manifest in many of the records brought to this court, that a different rule of damages should be applied against railroad corporations from that applicable under like circumstances to individuals, still we do not feel prepared to say, on a comparison of the verdicts in similar cases which have come under our observation, where applications for new trials have been urged on account of excessive damages, which is the only criterion for our guidance in the absence of anything in the record to indicate that the jury were actuated by prejudice, passion, or other improper considerations, that the verdict in this case, though much larger than it seems to us it should have been, is so excessive as to require a reversal of the judgment. (Caldwell v. New Jersey Steamboat Co., 47 N. Y., 282; Curtiss v. Rochester and S. R. R. Co., 20 Barb., 282; Illinois Central Railroad Co. v. Welch, 52 Ill., 183; Shaw v. Boston and Worcester Railroad Co., 8 Gray, 45; Collins v. Boston and Albany Railroad Co., 12 Barb., 492; Clapp v. Hudson River Rail[264]*264road Co., 19 Barb., 461; Mobile Railroad Co. v. Ashcraft, 48 Ala., 15; Huckle v. Money, 2 Wilson, 205.)
The judgment is affirmed;
Affirmed.
[Justice Bonner did not sit in this case.]